Supreme Court ruling imperils broke tenants amid Delta threat

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Landlords unable to collect billions of dollars in rent during the COVID-19 pandemic have convinced the U.S. Supreme Court to overturn the Biden administration’s ban on evictions, leaving cash-strapped tenants at imminent risk of losing their homes.

The three members of the court’s so-called liberal wing, all appointed by Democrats, dissented from Thursday evening’s unsigned order.

The decision -- which holds that authority to block evictions resides in Congress, not the executive branch -- required support from at least four of the six remaining justices, three of whom were chosen by former President Donald Trump.

The moratorium has put “millions of landlords across the country at risk of irreparable harm by depriving them of rent payments with no guarantee of eventual recovery,” the court ruled. “Many landlords have modest means. And preventing them from evicting tenants who breach their leases intrudes on one of the most fundamental elements of property ownership – the right to exclude.”

The White House quickly expressed its dissatisfaction with the decision, although President Biden had previously acknowledged the ban was unlikely to survive court scrutiny.

“As a result of this ruling, families will face the painful impact of evictions, and communities across the country will face greater risk of exposure to COVID-19,” Press Secretary Jennifer Psaki said in a statement. The president is urging “all entities that can prevent evictions" – from cities and states to local courts, landlords and Cabinet agencies – to act quickly, she said.

The ruling marks the latest turn in a year-long struggle between rental property owners and the government, which had sought to protect renters from losing their homes as the COVID-19 pandemic locked down large swaths of the U.S. economy, driving up unemployment and killing more than 600,000 Americans.

The first moratorium, from March through July 2020, was established in a Congressional relief package and applied to properties that benefited from federal assistance programs.

When it lapsed, the Centers for Disease Control and Prevention under Trump not only extended the ban but broadened it, barring evictions from all rental properties and imposing criminal penalties for violations.

Slated to expire at the end of 2020, the ban was stretched through January 2021 in a new Congressional relief package and then renewed repeatedly by the CDC under a statute authorizing federal public health officials to set and enforce rules intended to prevent infectious disease.

Warning sign for renters

Property owners in Alabama and Georgia sued to block the ban, which they argued had cost landlords across the U.S. as much as $19 billion a month, and U.S. District Judge Dabney Friedrich in the District of Columbia found in their favor.

She nonetheless stayed enforcement of her decision in Alabama Association of Realtors v. Department of Health and Human Services while the government appealed.

The D.C. appeals court declined to overturn the stay, then scheduled to expire at the end of July, as did the Supreme Court. Justice Brett Kavanaugh, who concurred with that decision, nonetheless wrote that the CDC had exceeded its authority.

That spelled trouble from the outset for another, more-tailored moratorium that the Biden administration imposed in early August, as COVID-19’s delta variant sparked a surge in infections and reignited debates over masking and social distancing.

It was against that backdrop that the landlords returned to court, overpowering the government's defense by acting Solicitor General Brian Fletcher.

Property owners, represented by Brett Shumate, Charlotte Taylor, Stephen Kenny and J. Benjamin Aguinaga of Jones Day, told the Supreme Court in their application to vacate the stay that they were “unlikely to obtain any payment or damages” from nonpaying tenants once the moratorium expired.

'Cribs on the Street'

As a result, they said, their only recourse is to “evict non-paying tenants and rent the properties to paying tenants.”

While the court acknowledged the government’s interest in limiting the spread of COVID-19, the justices said “our system does not permit agencies to act unlawfully even in pursuit of desirable ends.”

That conclusion drew backlash not only from Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor, who dissented, but also on social media and from Democratic lawmakers in Congress.

“Eviction is a horror that no family should ever have to experience, with cribs and personal belongings on the street, children in fear and distress and parents struggling to find basic shelter,” House Speaker Nancy Pelosi said in a statement on Friday.

“Putting people out of their homes and forcing them to crowd in with others is also a public health risk as the delta variant accelerates,” added the Democratic speaker, who promised her party would never “accept a situation of mass evictions.”

Lawmakers are examining possible legislative solutions, she said in a letter to colleagues, and House Financial Services Chairwoman Maxine Waters, D-California, is looking for ways to speed the distribution of a log-jammed $46.5 billion in rental assistance previously approved by Congress.