The Volokh Conspiracy

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What Happened to the Legality of the CDC Eviction Moratorium Between Saturday and Tuesday?

President Biden decided to call Justice Kavanaugh's bluff.


On Saturday, the CDC allowed the eviction moratorium to lapse. According to several reports, the Biden Administration tried, and failed to find a legal way to extend the policy. Recall that five Justices found the moratorium was illegal, but only four were willing to do anything about it. I speculated that the Biden Administration was unwilling to call Justice Kavanaugh's bluff.

In the wake of that decision, prominent Democrats including AOC criticized the Biden Administration for not taking action to help renters. The WH defended the action, saying there was no way to extend the policy.

This morning, I enjoyed reading Mark Tushnet's post at Balkinization. He stated (correctly) that there was no actual Court decision saying the moratorium is illegal. Thus, the administration could, in good faith, simply extend the policy. And, Tushnet offered some advice to Biden: "Go for it if you think that the political benefits of imposing the moratorium exceed the political flak you'll get – and you will get some – from 'acting like Governor Faubus.'"

Orval Faubus, meet Joe Biden.

This evening, the CDC issued a 19-page order that extends the eviction moratorium in certain high-transmission areas. If I had to guess, this order had been vetted, but the politicos were unwilling to release it for fear of a Supreme Court rebuke. But when the pressure mounted, President Biden caved, and followed Tushnet's strategy. He decided to call Justice Kavanuagh's bluff. Now, it will be the evil Supreme Court, and not the President who has to take the political hit.

Update: The Solicitor General offered this representation on June 24:

This letter is to inform the Court that today, the Centers for Disease Control and Prevention (CDC) published an order extending its temporary moratorium on residential evictions, previously scheduled to expire on June 30, 2021, through July 31, 2021. In issuing the order, the CDC stated: "Although this Order is subject to revision based on the changing public health landscape, absent an unexpected change in the trajectory of the pandemic, CDC does not plan to extend the Order further." Order at 6; see also id. at 12.

There was no "unexpected change in the trajectory of the pandemic." There was political pressure.