A federal appeals court on Friday declined to block the Biden administration’s new eviction moratorium, setting up a showdown at the Supreme Court.
The three-judge panel at the U.S. Court of Appeals for the D.C. Circuit acted without recorded dissent and did not provide a detailed explanation for its ruling.
The decision went against local chapters of the National Association of Realtors, who on Saturday asked the appeals court to halt enforcement of the moratorium while they challenged the legality of the policy. The Realtors plan to file an emergency motion in the Supreme Court immediately, association spokesperson Wes Shaw said.
Obama appeals court appointee Cornelia Pillard, Trump appointee Neomi Rao and newly confirmed Biden appointee Ketanji Brown Jackson all voted to reject the Realtors’ request.
The Realtors argue that the Biden administration ignored a late-June Supreme Court decision signaling that the Centers for Disease Control and Prevention did not have the authority to impose a moratorium when the agency ordered the latest ban on Aug. 3.
The eviction ban that preceded the latest moratorium cost landlords billions of dollars a month before it expired July 31. The restrictions were intended to keep tenants housed after they lost income because of the pandemic.
In response to litigation brought by the Realtors against the earlier ban, the Supreme Court signaled that the policy was likely on shaky legal footing. The high court, in a 5-4 decision on June 29, allowed the moratorium to continue until its expiration July 31, but Justice Brett Kavanaugh — the deciding vote on sparing the ban — warned in his concurring opinion that the CDC had gone beyond its legal power and that the ban’s imminent expiration was what motivated him to let it stand temporarily.
President Joe Biden himself acknowledged doubts about the new ban’s fate in court on the day the same day the CDC rolled it out, saying “any call for a moratorium based on the Supreme Court’s recent decision is likely to face obstacles.” Still, he said, “by the time it gets litigated, it will probably give some additional time” to state and local officials working to disburse $46.5 billion in rental assistance.
In their request for immediate relief from the appeals court, the Realtors cited Biden’s remarks.
“Given the president’s statement that this extension of the moratorium and any litigation in its defense are meant to buy time to keep an unlawful policy in place for as long as possible, this Court should issue an immediate administrative order vacating the stay while it considers this motion,” lawyers for the landlords and real estate brokers’ group wrote in their motion filed Saturday.
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