Divided Supreme Court Leaves Eviction Ban In Place Through July 31

The U.S. Supreme Court on Tuesday refused to lift a ban on evictions for tenants who were unable to pay all or a portion of the rent during the coronavirus pandemic.

New York, N.Y., Saturday, May 29, 2021. (Photo/Jon Tyson)

By a 5-to-4 vote, the court left in place the nationwide moratorium on evictions put in place by the Centers for Disease Control and Prevention, and which was challenged by the Alabama Association of Realtors.

Justice Brett Kavanaugh, who cast the fifth and deciding vote, wrote in a concurring opinion that – he voted not to end the eviction program set to expire on July 31, only because the upcoming weeks will allow for additional time for states to distribute the funds that Congress appropriated to provide rental assistance to those in need because of the pandemic. Kavanaugh added, however, that in his view Congress would have to pass new and clearer legislation to extend the moratorium past July 31.

The Biden - Harris administration has said it does not plan to extend the moratorium any further.

The four votes to leave the program intact until July 31, were Chief Justice John Roberts and Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan.

The Justices who would have blocked the moratorium from continuing for another month were – Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Amy Coney Barrett.

The Supreme Court decision comes at a time when far more than approximately 6 million households (with approximately 15 million people within them) - per US Census Bureau - are still struggling to pay back rent, at no fault of their own, with approximately 3.2 million households ‘very likely’ to face evictions within the next two months.

Back in 2020, when Governors ordered a mandatory stay-at-home order, millions of people lost their jobs, without a plan set in place by the state on how to immediately assist constituents who were already burdened by the high rental costs prior to the pandemic.

Due to restless neighbors, advocates, numerous organizations, and progressives who run for office in 2020, mobilizing and organizing on a national scale, calling for rent, mortgage, and utility cancelation, some members of Congress listened and took steps in 2020 to protect renters and homeowners. Last April, Rep. Ilhan Omar (D-MN) introduced legislation — The Rent and Mortgage Cancellation Act (H.R.6515) — which would institute a nationwide cancellation of residential rents and mortgage payments during the duration of the Covid-19 pandemic. In March of this year, the Congresswoman reintroduced the bill again, but this time asking to permanently cancel all rent and mortgage payments until April 2022. Despite the courageous and humanitarian attempts to help homeowners and renters alike, there is no plan for Congress to pass this proposed legislation. Instead of passing this bill (H.R.6515), a COVID-19 eviction ban was put in place late last year, to provide protection for renters out of concern that having families lose their homes and move into shelters, or share crowded conditions with relatives, or friends during the pandemic would further spread the highly contagious and deadly virus.

During his presidential campaign in 2020, Biden promised a student loan forgiveness plan and other related education agenda – Joe’s Agenda for Students - a progressive promise for many whose college dreams have become unaffordable. Biden said during his campaign, “a college degree has also saddled young adults with so much debt that it prevents them from reaching important financial milestones like buying a home or saving for retirement.” If the President is willing to cancel student loans for millions of borrowers, then why not act in the same manner and work with Congress (and mostly with Congresswoman Omar), to prevent a mass wave of evictions in the upcoming weeks?

Now, even with a friendlier administration in Washington, DC, the high rental cost, poverty line job creations, and unaffordable health care insurance during a one hundred year pandemic, combined with a slow process of distributing the $46 billion in congressionally approved rental assistance from reaching many people facing eviction who need it, keeping the eviction ban in place until the end of July, is a band-aid to a looming massive wave of evictions.

Housing advocates and organizations have been warning that pulling the CDC eviction protections away from people before congressional aid can reach them, would spark a wave of evictions that could otherwise be avoided.

Many landlords who argued that the CDC order was an overreach and that the agency doesn't have the power to, in effect, take control over their properties, have already begun the eviction process against many families, and are waiting for the day when they can have a U.S. Marshall physically remove their tenant(s).

In New Jersey, Chief Justice Stuart Rabner, ordered lower courts Friday, to begin scheduling settlement zoom conferences in a massive backlog of roughly 60,000 renters cases filed between April 2020 - March 2021. The court will assign cases either by older, with most unpaid rent first, or newly filed cases with a year plus owed rent. If a renter fails to show up they will face an eviction order, but the more pressing question is – ‘Will tenants receive any help during this process?’

Eric Tars, the legal director at the National Law Center on Homeless and Poverty, Washington, D.C., said that “states need to make sure that the already received aid is being distributed with the priority that needs to be.”

He continues by saying – “there's more that can be done. Even after the federal moratorium expires, the states could put in place a rule in the local courts that would say: ‘Before a landlord is able to file an eviction, they have to file a certification showing that they have tried to help their tenants get federal aid, if they are entitled to it. A number of other courts have already done that. I don't know if that has happened in New Jersey or not, but the courts could be a kind of measure of last resort, to make sure that people who are entitled to aid, are at least given the option of trying to get it, before getting evicted. It makes sense to put the duty on the landlord as the repeat actors, rather than the tenants to actually make sure that people are accessing that aid. So they can do that at the local level, and then at the federal level.

Chairwoman, Maxine Waters just held a hearing a couple weeks ago, on the idea of universal housing vouchers, which if we had those in place, none of this would ever have been a question in the first place. If people would have lost income, they would have been eligible for a voucher to help cover the costs, and we would have had the infrastructure in place. Whether you see it as an anti-poverty measure, or as a public health measure, it would get the job done. But instead, what we have right now is a system where only one out of every four people who are income-eligible for a voucher actually gets one. And that means three out of four people who need that money are even before the pandemic on the edge of losing their apartments every month. There's a lot more we can do on the prevention side, as well,” according to Tars.

Tars added: “I think the CDC, not the Supreme Court, knows best what is in the interest of the nation's public health. It's very clear that Congress was not able to act to keep in place an eviction moratorium. They had multiple chances. They did so initially in the Cares Act (H.R.748), which was great. But then, once it expires, they weren't able to act for multiple months. Eventually, the CDC stepped in, because they realized what a disaster it would be if 30 million people suddenly lost their homes and had to go to court in crowded courtrooms to fight their cases – forcing them to mix with family and friends or shelters. It would have exacerbated the already terrible consequences, and new studies have shown how many people were actually saved and continue to be saved by the moratorium; 10s of 1000s of lives.

For the Supreme Court to say that this is somehow overreaching their authority to take the steps that are necessary to ensure public health, just boggles the mind. I’m very concerned about the implications of events in the future. Obviously, Congress could step in and create a statutory fix, to say explicitly that this is something that the CDC can do. But, we've seen how difficult it is for Congress to actually act in the nation's best interest. So, I'm worried about what that decision actually means for the longer-term future.”

Last week, the White House hosted a one-of-a-kind first virtual eviction prevention summit, to coordinate immediate eviction prevention plans and raise awareness about the issue across federal agencies. Following the summit, Associate Attorney General Vanita Gupta sent a letter to state courts around the country encouraging them to adopt eviction diversion strategies in new guidelines, as the number of eviction filings is expected to rise.

Letter from Associate Attorney General Gupta_June 24 2021
Download PDF • 312KB

Also last week, the Treasury Department issued new guidance encouraging states and local governments to hurry up the distribution of the nearly $47 billion in available emergency rental assistance funding.

Roughly 3.2 million people in the U.S. will face evictions in the next couple of months, according to the U.S. Census Bureau’s Household Pulse Survey.

COVID-19 has magnified the numerous holes in the social safety net, and the need for policymakers to prevent another crisis like this. Can America put its citizens first, before politics and profits, in order to prevent a massive wave of evictions?

We may continue to update this article as soon as more information becomes available.

EDITOR’S NOTE: Alie Pierce is a human rights advocate. In 2020 Pierce started & executed the Cancel Rent/Mortgages/Utilities grassroots policy movement in the state of New Jersey. Follow her on Twitter.

(Supreme Court Photo/Ian Hutchinson)

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