Over at Vox, Ian Millhiser has an article out today that wrongly claims that the Biden Administration cannot unilaterally extend the eviction moratorium.
Millhiser’s reasoning for this is rooted in the recent Supreme Court case Alabama Association of Realtors v. HHS. In that case, the Supreme Court ruled 5 to 4 that the CDC eviction moratorium could continue, but one of the judges that voted to continue the moratorium, Brett Kavanaugh, wrote the following concurring opinion:
I agree with the District Court and the applicants that the Centers for Disease Control and Prevention exceeded its existing statutory authority by issuing a nationwide eviction moratorium. Because the CDC plans to end the moratorium in only a few weeks, on July 31, and because those few weeks will allow for additional and more orderly distribution of the congressionally appropriated rental assistance funds, I vote at this time to deny the application to vacate the District Court’s stay of its order. In my view, clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July 31.
It is fair enough to say that Kavanaugh is signaling in this opinion that, if the CDC extended the moratorium further without an act of Congress and someone brought a case against that action, he would switch his vote and rule that the moratorium is illegal. But this is not the same thing as ruling that the eviction moratorium is illegal. As it stands, we have 5 judges who have ruled that the CDC can do eviction moratoriums under its current statutory authority and 4 who have ruled the opposite. What Kavanaugh says in this paragraph is dicta and not binding in any way.
What you can say about an extended moratorium is that you think that the Supreme Court would reverse its prior ruling if another case made its way to them. But this is true of many things. I think that, if someone brought a case arguing that fair-share fees in the NLRA are unconstitutional, the Supreme Court would reverse its prior ruling on that question and declare that they are unconstitutional. But that is not the current law. And the NLRB can and should continue to act according to the current law, not switch how it acts based on its anticipation of how the current Supreme Court might rule on previously-settled questions.
This might seem like a pedantic point, but in very practical terms, it is not. Even if you believe extending the CDC eviction moratorium would eventually result in a Supreme Court case that reverses its last decision on the question, the process of getting to that point takes a long time, during which the eviction moratorium will be in effect.
With this all said, we should not give Congressional Democrats a break on this and act like Biden is the only one who can act. Democrats control majorities in both chambers. They could pass a bill to clarify the CDC statute so that the Supreme Court is taken out of the picture. They choose not to do that and not just for filibuster-related reasons. Reportedly, they don’t even have enough Democrats in the House to pass such a bill.