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May 26, 2021

Evictions Moratorium Facing Court Challenge

Ruling Increases Uncertainty for Renters

There have been two federal moratoria on evictions, both of which have been the target of significant legal challenges.

There have been two federal moratoria on evictions, both of which have been the target of significant legal challenges.

A federal judge’s decision in mid-May to temporarily stay her earlier ruling that would have lifted a federal eviction moratorium is providing a reprieve to low-income renters at risk of being removed from their homes, but final resolution of the looming nationwide crisis is far from over.

In a May 5 ruling, Dabney Friedrich, U.S. District Court judge for the District of Columbia, ruled that the Centers for Disease Control (CDC) exceeded its authority with a temporary ban it issued in September 2020. On May 14, she agreed to stay her order while the Department of Justice appeals it.

There have been two federal moratoria on evictions, both of which have been the target of significant legal challenges by affected property owners, real estate agents and interest groups. The first moratorium was instituted under the CARES Act that was signed into law by President Trump in March 2020. And when that moratorium expired, the CDC stepped in with a second moratorium that runs through June 2021. The CDC moratorium is the subject of Friedrich’s ruling. 

The CDC has contended that evicted renters would be at further risk of contracting the virus because they could be forced to move into more crowded housing. Its order cited a 1944 public health law giving the HHS secretary certain powers to prevent communicable diseases from crossing state lines. But Friedrich ruled that the 1944 law does not give the CDC the power to ban evictions.

At stake is the housing status of potentially millions of renters who have been thrown out of work because of the pandemic. According to testimony in March by Treasury Secretary Janet Yellen to the House Financial Services Committee, almost one-in-five renters are behind on their rent.

In anticipation of a wave of evictions when the federal moratorium is lifted, the ABA has been advocating for extension of the moratorium as well as emergency funding for the Legal Services Corporation so that its lawyers can help people impacted by the pandemic, especially in the area of housing.

The LSC has estimated more than 5.1 million U.S. households who qualify for LSC-funded services are at risk of eviction.

In a February 2021 letter to Congressional leaders, ABA President Patricia Lee Refo urged them to support $350 million to $500 million in additional supplemental pandemic-related funding requested by the LSC, as well as an extension of the moratorium on housing evictions and relief for landlords, in the American Rescue Act.

The $1.9 trillion act, signed into law in March, did not include LSC supplemental funding but did include an additional $20 million for  funding for eviction relief legal services. The ABA is supporting the LSC’s current request, $350 million in supplemental funding in the American Jobs Act. That bill is currently under debate.  

This year’s ABA Day in April also featured advocacy on behalf of the LSC for increased funding.

To ease the rental crisis, the Department of the Treasury announced on May 7 that it would allot $21.6 billion in additional funds for emergency rental assistance. The aid is aimed at helping to prevent evictions as well as ensure housing security for renters affected by affordable housing challenges that have been made worse by the pandemic.

On May 18th, President Biden also signed a memorandum reconvening the White House Legal Aid Interagency Roundtable (LAIR).  At its first convening, the LAIR “shall, at a minimum, address access-to-justice challenges the pandemic has raised” and work towards solutions, which hopefully includes relief for the expected tsunami of evictions.

The evictions issue continues to develop, but the need for emergency funding so LSC can help low-income families potentially facing evictions remains critical.  For updates as developments occur, follow us @ABAGrassroots.

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