Federal judge skeptical that new deportation moratorium could survive court challenge

A federal judge in Washington seemed skeptical on Monday that the Biden administration’s new moratorium on evictions could survive a legal challenge brought by a group of homeowners.

“It’s really hard to conclude that there isn’t a certain sense of the game,” said Judge Dabney Friedrich of the District Court for the District of Columbia.

The scope and legal basis of the new order “is almost identical to the previous CDC order, as is the effect thereof,” she said.

Friedrich told lawyers in a brief hearing that she came to her assessment in light of a strong suggestion from the Supreme Court that the Centers for Disease Control and Prevention did not have the power to issue a Such a drastic order on their own, and in light of statements by Biden administration officials that they had no legal authority to act.

The administration urged the judge to dismiss a challenge filed by a group of homeowners led by the Alabama Association of Realtors.

“We are in a new chapter in this pandemic,” said Brian Netter, attorney for the Department of Justice.

Doubts about the CDC’s authority rested in part on the national reach of the previous ordinance, Netter said. The new one is more targeted, only covering counties with a high level of Covid transmission, he said.

“Isn’t it true that it still covers 85% of counties in the United States?” asked Judge Friedrich. “Isn’t this indeed a nationwide moratorium?”

Netter said that while it may be true now, the scope of the moratorium will narrow as the public health situation improves.

The initial moratorium on evictions was imposed by Congress as part of the coronavirus relief program in March of last year. Upon its expiration, the CDC issued its own moratorium based on its authority to take action to protect public health. On May 5, Friedrich ruled that the CDC did not have the authority for such a sweeping order, but delayed its order to give the government a chance to appeal.

The owners then asked the DC Court of Appeals and the Supreme Court to overturn that decision. Both courts refused. But four Supreme Court justices said they would have granted the request. Judge Brett Kavanaugh said he would have done it too, but decided not to because the moratorium at that time in late June was just a few days old. He said only Congress could impose such a moratorium nationwide.

But after the House left for its August recess without an extension of the moratorium, Democratic lawmakers called on the administration to act.

Pleading for the owners, Washington attorney Brett Shumate said “everyone, including the White House,” understood the court signal meant that only Congress could issue a new moratorium.

“The CDC and the White House have bowed to political pressure,” he said.

The judge said she would rule on the challenge to the moratorium “in the near future”, but did not say when.