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ANALYSIS: Biden Gave Way To Progressives On Eviction Moratoriums, But Will The Supreme Court Allow It?

[Shutterstock/Steven Frame]

Anders Hagstrom White House Correspondent
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President Joe Biden’s administration is imposing a partial eviction moratorium through the Centers for Disease Control and Prevention (CDC), a move that might satisfy House Democrats, but could fly in the face of the U.S. Supreme Court.

He said Tuesday it was “not likely to pass constitutional muster.” White House press secretary Jen Psaki appeared to walk back the remark the next day, saying he was “comfortable” with the “legal justification” of the move.

The White House has gone back and forth with House Speaker Nancy Pelosi for more than a week over whose responsibility it is to extend the national ban on evictions that expired July 31. While the Biden administration previously extended the moratorium for an additional month in June, the U.S. Supreme Court soon stepped in and said CDC did not have the authority to extend it further. It is unclear whether the new, less expansive ban will pass constitutional muster. (RELATED: CDC Extends Trump Admin’s Coronavirus Eviction Moratorium, Despite 2 Judges Ruling It Unconstitutional)

The Supreme Court heard a case regarding the legality of the CDC’s moratorium extension in June. While it allowed the extension to continue through July 31, it ruled that the CDC could not further extend the ban without “clear and specific congressional authorization (via new legislation).” (RELATED: Psaki Dodges On Whether Unemployment Benefits Are Slowing COVID Recovery)

Pres. Joe Biden addressed the AG report that determined Gov. Andrew Cuomo sexually harassed multiple women. (Screenshot Grabien, President Biden Delivers Remarks On Progress Toward Fighting The COVID-19 Pandemic)

President Joe Biden responds to questions about plans to extend the CDC’s eviction moratorium at the White House on Tuesday 08/3/2021. The U.S. Supreme Court found in June that the CDC does not have the authority to extend a universal ban on evictions past July 31. The Biden administration has now released a tailored version of the ban that applies only to areas with “heightened levels of community transmission.” (Screenshot/Grabien)

Pelosi and Democrats nevertheless demanded that the Biden administration extend the moratorium regardless of the SCOTUS ruling, and the White House resisted the pressure for days. (RELTED: Here’s Why ‘The Squad’ Is Camping Out On The Steps Of Capitol Hill)

“Given the recent spread of the Delta variant, including among those American’s both most likely to face evictions and lacking vaccinations, President Biden would have strongly supported a decision by the CDC to further extend this eviction moratorium,” Psaki said July 29. “Unfortunately, the Supreme Court has made clear that this option is no longer available.”

The new moratorium focuses on areas with “heightened levels of community transmission” of COVID-19 and the delta variant, according to the CDC order. The previous moratorium had no such limits, and the new restrictions are no doubt an attempt to avoid another strike-down from the Supreme Court. (RELATED: ‘I Think He Should’: Biden Calls On Cuomo To Resign Following Investigation)

WASHINGTON, DC – JULY 30: Speaker of the House Nancy Pelosi speaks during a bill enrollment ceremony for the Emergency Security Supplemental Appropriations Act at the U.S. Capitol on July 30, 2021 in Washington, DC. The bill provides $1.9 billion in FY2021 for emergency supplemental appropriations for the legislative branch and federal agencies to respond to the attack on the U.S. Capitol Complex that occurred on January 6, 2021. (Drew Angerer/Getty Images)

Should the new order fail in courts, however, the White House is likely to return to the arguments it was making earlier this week. Psaki argued as late as Tuesday afternoon that state governments should take up the mantle and enact eviction moratoriums themselves, given that the relevant funding is still available. Senate Minority Leader Mitch McConnell echoed the argument as well, saying he doesn’t believe action is necessary on the federal level. (RELATED: Top Republican Demands Janet Yellen Testifies About $44 Billion In Unused COVID Funds)

Democrats in Congress had attempted to pass a moratorium extension via unanimous consent Friday, but the effort fell to Republican opposition.

“We are proud and pleased that, overwhelmingly, House Democrats have understood the hardship caused by rental evictions and support extending the eviction moratorium to October 18, 2021,”  Pelosi and other Democratic leaders said in a statement at the time. “Unfortunately, not a single Republican would support this measure.”