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Saturday, January 29, 2022

Opinion | The Supreme Court Might Strike Down Biden’s Eviction Ban. It Shouldn’t.

For months, millions of Americans, behind on their rent, have been living in legal limbo. This spring, a court struck down the nationwide eviction moratorium adopted by the Trump administration last September, ruling that the Centers for Disease Control and Prevention had overstepped its statutory authority. The case was appealed, and five justices of the Supreme Court signaled that they agreed with the lower court, but one of the five, Brett Kavanaugh, voted to allow the eviction freeze to stand — only because it was set to expire just a few weeks later, on July 31.

Justice Kavanaugh’s opinion was just three sentences long, but it set Democrats, who hoped to extend the Trump eviction moratorium, on a collision course with the Supreme Court. When July 31 came and the moratorium expired, the Biden administration, after first suggesting that the court had tied its hands, ended up issuing a regulation that, unlike the earlier nationwide freeze, applies only to areas of the country “experiencing substantial and high levels of community transmission” of the virus. President Biden cautioned, however, that the courts might strike it down. Asked whether it would pass constitutional muster, he admitted to reporters on Tuesday, “I can’t tell you. I don’t know.” He said that the bulk of constitutional experts who were consulted believed it would be overturned.

Ordinarily, elected officials should not adopt laws or regulations that they predict will be struck down. They take an oath to support and defend the Constitution. But the Biden administration had valid reasons to issue its eviction moratorium. For one, the justices were wrong about the earlier ban. Congress explicitly gave the C.D.C. and the secretary of health and human services authority to make and enforce regulations that they deem “necessary to prevent the introduction, transmission or spread of communicable diseases.” Moreover, the Biden administration’s moratorium differs from Trump’s in ways that matter, further muddying the constitutional picture.

By law, the C.D.C. has a broad mandate designed for situations like a pandemic, in which public health authorities need to respond quickly to protect human health. That is exactly what the eviction moratoriums have done: They have helped prevent the spread of Covid by reducing the influx of people into already overcrowded homeless shelters. The moratoriums have also prevented families from being forced to move in with relatives or friends, thereby creating conditions for easy transmission. It is estimated that the earlier moratorium, along with similar state moratoriums, may have prevented the eviction of up to 40 million people who were behind on rent.

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