The judge believes the moratorium is illegal but argued her ‘hands are tied’ by a previous ruling by a higher court.
A federal judge is refusing landlords’ request to put the Biden administration’s new eviction moratorium on hold, though she made clear she thinks it is illegal.
US District Judge Dabney Friedrich on Friday said her “hands are tied” by an appellate ruling the last time courts considered the evictions moratorium earlier this year.
Alabama landlords who are challenging the moratorium are likely to appeal.
Friedrich wrote that the new temporary ban on evictions the Centers for Disease Control and Prevention (CDC) imposed last week is substantially similar to the version she ruled was illegal in May. At the time, Freidrich put her ruling on hold to allow the administration to appeal.
This time, she said, she is bound to follow a ruling from the appeals court that sits above her, the US Court of Appeals for the District of Columbia Circuit.
If the DC Circuit does not give the landlords what they want, they are expected to seek the US Supreme Court involvement.
In late June, the Supreme Court refused by a 5-4 vote to allow evictions to resume. Justice Brett Kavanaugh, part of the slim majority, said he agreed with Friedrich, but was voting to keep the moratorium in place because it was set to expire at the end of July.
Kavanaugh said then that he would reject any additional extension without clear authorisation from Congress, which has not been able to take action.
A lower court in May had ruled in favour of a coalition of landlords led by the Alabama Association of Realtors. “Congress never gave the CDC the staggering amount of power it now claims,” the association argued then.
Ahead of the new CDC order, White House senior adviser Gene Sperling had said last week that administration lawyers had been “unable to find the legal authority for even new targeted eviction moratoriums”.
The next day, however, the administration went ahead with issuing the moratorium. In announcing the order, President Joe Biden acknowledged there were questions about its legality, but said a court fight over the new CDC order would buy time for the distribution of some of the $45bn in rental assistance that has been approved but not yet used.
“I’ve sought out constitutional scholars to determine what is the best possibility, that would come from executive action or the CDCs judgement. What could they do that was most likely to pass muster constitutionally,” Biden said.
“The bulk of the constitutional scholarship says that it’s not likely to pass constitutional muster,” Biden admitted but added, “there are several key scholars who think that it may, and it’s worth the effort.”
Biden noted that by the time legality of the CDC order is adjudicated in court, it would probably reach its 60-day expiration. The Biden administration expected that large sums of aid to tenants and landlords under a $46.5bn federal programme would have been distributed, easing circumstances for many.