‘We Don’t Control the Courts’: White House Defends New Eviction Moratorium

President Joe Biden speaks during an event in the East Room of the White House on Aug. 3, 2021. Win McNamee/Getty Images

The White House defended the new eviction moratorium on Aug. 4, which officials said was illegal earlier this week.

President Joe Biden “would not have supported moving forward with any action where he didn’t feel there was legal standing and legal support,” White House press secretary Jen Psaki told reporters in Washington.

Biden and administration officials said in recent days that a Supreme Court ruling on the moratorium meant that the administration couldn’t extend it before it expired on July 31 or issue a more targeted version.

“On this particular issue, the president has not only kicked the tires; he has double, triple, quadruple checked. He has asked the [Centers for Disease Control and Prevention] to look at whether you could even do targeted eviction moratorium—that just went to the counties that have higher rates—and they, as well, have been unable to find the legal authority for even new, targeted eviction moratoriums,” Gene Sparling, a senior adviser to Biden, told reporters on Aug. 2.

Two federal courts said the Centers for Disease Control and Prevention (CDC) engaged in federal overreach with the moratorium. The Supreme Court left the moratorium, issued and extended by the CDC, in place in June, but Justice Brett Kavanaugh, a Trump appointee, said that another pause couldn’t be imposed without congressional approval.

That left the White House scrambling when Congress failed to reach a deal on legislation that would have extended the moratorium amid in-fighting among Democrats and opposition from many Republicans.

The moratorium expired at midnight on July 31.

The CDC issued a new order on Aug. 3. The order pauses evictions for 60 days in approximately 80 percent of counties in the United States.

Psaki said the CDC and White House lawyers eventually identified a legal pathway that enabled the agency to issue another order despite the court rulings.

On Aug. 2, that pathway hadn’t been identified. But on Aug. 3, it was, she said.

“We don’t control the courts. We don’t know what they will do. We are all aware of the Supreme Court decision at the end of June and what was outlined in their decision at the end of June. This is also going to be a temporary solution regardless and the longer-term solution will require legislative action,” she said.

While Psaki didn’t identify the pathway, CDC Director Dr. Rochelle Walensky, in her order, said the emergency action was taken under authority provided by 42 CFR 70.2, which enables the CDC’s director to take measures to prevent the spread of diseases.

White House press secretary Jen Psaki answers questions in Washington on Aug. 4, 2021. Win McNamee/Getty Images

People who violate the order are subject to a fine of up to $100,000 and a prison sentence of up to one year in prison.

Democrats largely praised the action.

“I’m grateful that the Biden Admin. has extended the eviction moratorium for 90 percent of Americans!” Rep. Jim Langevin (D-R.I.) wrote on Twitter.

But Republicans said the move wasn’t lawful.

“Last month, the courts made clear the CDC lacks the authority to extend the eviction moratorium. Even President Biden admitted this fact,” Rep. Patrick McHenry (R-N.C.) said in a statement. “Now the Administration is attempting to skirt the judicial branch with this half-baked idea that does nothing to actually help renters.”

Biden told reporters late on Aug. 3 that he sought out constitutional scholars on what the CDC could do about the matter.

“The bulk of the constitutional scholarship says that it’s not likely to pass constitutional muster. No. 1. But there are several key scholars who think that it may and it’s worth the effort. But the present—you could not—the Court has already ruled on the present eviction moratorium,” he said.

“I have been informed they’re about to make a judgment as to potential other options. Whether that option will pass constitutional measure with this administration, I can’t tell you. I don’t know. There are a few scholars who say it will and others who say it’s not likely to. But, at a minimum, by the time it gets litigated, it will probably give some additional time while we’re getting that $45 billion out to people who are, in fact, behind in the rent and don’t have the money.”