The Centers for Disease Control issued the new eviction moratorium on Aug. 3 despite U.S. Supreme Court justice Brett Kavanaugh explaining that the CDC’s previous moratorium was beyond their authority on June 29th. The issue has split Pennsylvania’s congressional delegation, with Republicans voicing opposition but Democrats staying largely silent.

Republican Sen. Pat Toomey blasted the move by the CDC and the Biden administration.

“The eviction moratorium lacks both a legal basis and an economic justification. Even the president admitted today that the “bulk of constitutional scholars say . . . it’s not likely to pass constitutional muster.”

Pennsylvania Reps. Scott Perry and Fred Keller joined 27 other congressional Republicans in signing on to a Wednesday letter addressed to President Joe Biden that called the administration’s move “plainly unconstitutional.” 

With the legality of the moratorium in such doubt and few public statements coming from Pennsylvania Democrats, Broad + Liberty requested comment from Senator Bob Casey and the nine Democratic house members.

None replied.

In a concurring opinion to the Supreme Court ruling, Justice Kavanaugh wrote, “The Centers for Disease Control and Prevention exceeded its existing statutory authority by issuing a nationwide eviction moratorium.” Instead, the court said, any such rule would have to be enacted by Congress.

Afterward the White House gave straightforward answers to how they interpreted the court’s ruling.

“I think the wording in the Supreme Court opinion was fairly clear that they said the [Centers for Disease Control] could not grant such extension without quote, ‘clear and specific Congressional authorization,’” White House advisor Gene Sperling told reporters just one day before the moratorium was reissued.

However, the ruling did not immediately end the original moratorium. Instead, the court voted to let the regulation run its course, to “allow for additional and more orderly distribution of the congressionally appropriated rental assistance funds,” Kavanaugh wrote.

In the intervening weeks, members of Congress spoke of the moratorium in a way that acknowledged congressional action would be needed for a new moratorium to be legal. 

The court voted to let the regulation run its course, despite its illegality, to ‘allow for additional and more orderly distribution of the congressionally appropriated rental assistance funds.’

“I was prepared to vote for an extension of the federal eviction moratorium on Friday, and stand ready to do so if a vote comes to the floor. Americans need us to #ExtendTheMoratorium,” Rep. Mary Gay Scanlon (PA – 05) tweeted on Aug. 1.

“The pandemic is not over. And neither are its affects (sic) on our communities. We must extend the eviction moratorium. I was eager to vote to extend it on Friday — and am ready to quickly return to Washington to extend it. And I urge @POTUS to work to extend it as well,” tweeted Rep. Madeleine Dean of the Fourth Congressional District.

But Democrats struggled to gain enough support within their own ranks to pass a bill due to heated pushback from landlords in their districts, according to the New York Times.

With the effort to legally impose a new moratorium stalled, Rep. Cori Bush (D – MO) staged a protest by sleeping in front of the Capitol. This, along with additional activism by the progressive wing of the Democrat party, apparently instigated the Biden administration to issue the new moratorium through the CDC with slight modifications.

President Biden was questioned on the legal issue by reporters once the new moratorium was issued.

“I can’t guarantee you the court won’t rule that we don’t have that authority but at least we’ll have the ability to — if we have to appeal — to keep this going for a month-at least,” he said. “I hope longer.”

President Biden also hedged slightly in the same press conference, “But there are several key scholars who think that it may [pass Constitutional muster], and it’s worth the effort.”

Despite this vacillation, the White House has, at other times, been plain on the issue.

“Unfortunately, the Supreme Court has made clear that this option [moratorium by the CDC] is no longer available,” press secretary Jen Psaki said on July 29. “In June, when CDC extended the eviction moratorium until July 31st, the Supreme Court’s ruling stated that ‘clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July 31.’”

The Biden administration has tried to differentiate the latest moratorium from the one struck down by the Supreme Court by narrowing it to counties in which COVID infection rates are rising. 

U.S. District Court Judge Dabney Freidrich, however, has already begun emergency hearings this week, and was critical of the “narrowing” idea.

“Isn’t it the case that [the new moratorium] still covers 85 percent of the counties in the U.S.?” Freidrich asked. “Isn’t that effectively a nationwide moratorium?”

Meanwhile, Rep. Dwight Evans, a Philadelphia Democrat in the Third Congressional District, continues to push cosponsored legislation that would create a moratorium until the end of the year. 

The highly respected Lawfare blog provided a lengthy analysis of the key issues at stake, and concluded:

“A central message of Biden’s campaign was that he would rebuild norms of transparency, procedure, and honesty in the executive branch, norms that had been severely weakened by four years of the Trump administration. Based on the record as it stands now, there is a serious cloud around whether in this case the Biden administration has lived up to that promise. At the very least, the administration should clarify its confusing and seemingly contradictory statements about the internal legal deliberations. Whether one supports or opposes the CDC’s eviction moratorium, the question of how its legal basis was developed and whether that process was communicated truthfully and accurately to the public is a serious one, and one for which the Biden administration should be held to account.”

Todd Shepherd is Broad + Liberty’s chief investigative reporter. Send him tips at tshepherd@broadandliberty.com, or use his encrypted email at shepherdreports@protonmail.com.

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