But, she said, she was looking at a narrow question: whether the Public Health Service Act gave the CDC the authority to impose a nationwide eviction moratorium.
Friedrich also said that the landlords in that case had not met the burden of showing that an irreparable injury is likely and that there were estimates that as many as 433,000 cases and “thousands of deaths” could be attributed to lifting the ban.
A stay in the case would give a federal appeals court the time to review the ruling, Friedrich said, adding that it would “no doubt result in continued financial losses to landlords.”
Unlike Friedrich, the appeals court thought the administration would ultimately win the case.
The Supreme Court rules
Lawyers for the landlords then filed a motion for emergency relief at the Supreme Court on June 3, asking to remove the stay on Friedrich’s ruling blocking the eviction moratorium — in essence letting the moratorium end early.
Before the Supreme Court acted, the Biden administration said the eviction moratorium would end on July 31.
But here’s the catch: Although the court was just acting on the emergency request to put the moratorium on hold, its analysis included whether there was “reasonable probability” that four justices would ultimately agree to review the merits of the case and if “irreparable harm” would result from the denial of the stay.
Because this was an emergency request, there were no oral arguments, no briefing schedule, no reasoned opinion. Simply an order denying the relief.
Impact of Kavanaugh’s response
Kavanaugh’s vote is what is animating the Biden administration’s response.
Biden seemed to suggest that the Supreme Court had issued a reasoned opinion ruling once and for all that the mandate was unconstitutional.
The “courts made it clear that the existing moratorium was not constitutional,” Biden said Tuesday.
The court did not do that; it simply denied the landlord’s request for emergency relief. But Biden was reading the writing on the wall. Kavanaugh suggested that after the expiration, he thought Congress would have to act anew
Because four other conservatives, Clarence Thomas, Samuel Alito, Neil Gorsuch and Amy Coney Barrett noted that they would have sided with the landlords, and Kavanaugh said he was willing to do so after expiration, it seems clear extending the mandate could be in similar trouble.
Biden acknowledged that on Tuesday — hinting at a political motive designed to give Congress room to maneuver. “By the time it gets litigated,” he said, the dispute will give the administration “additional time.”
White House press secretary Jen Psaki on Wednesday responded to criticism from the progressive wing of the Democratic party that Biden’s comments on the constitutionality of the new moratorium may serve as a “self-fulfilling policy.”
“The President shares their desire, their commitment, and their interests in keeping renters and people in their homes, and that is exactly why he took the step of asking the CDC to look into what legal pathways forward there were, and yesterday’s announcement was a reflection of that,” Psaki 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 longer term solutions will require legislative action.”
CNN’s Kevin Liptak contributed to this report.