WASHINGTON (SBG) — A Supreme Court decision Thursday lifting a federal eviction moratorium could put millions of Americans at risk of losing their homes unless federal rental assistance funds begin reaching renters much faster, and experts see little indication further help is on the way.
“As a result of this ruling, families will face the painful impact of evictions, and communities across the country will face greater risk of exposure to COVID-19,” said White House press secretary Jen Psaki.
While the decision was disappointing to the White House and progressives, it was not unexpected. The Supreme Court narrowly decided in June against lifting a previous nationwide moratorium issued by the Centers for Disease Control and Prevention, but it had signaled any extension would need to be authorized by Congress.
After that moratorium expired at the end of July, the CDC announced a less expansive eviction ban that would only apply to areas with high COVID-19 transmission rates. At the time, President Joe Biden acknowledged the legal grounding for the order was shaky, but officials maintained it might withstand scrutiny due to the revised scope of the ban and the spread of the delta variant.
A majority of the Supreme Court disagreed, upholding a lower court ruling that overturned the moratorium and stating again that the CDC cannot impose sweeping restrictions on landlord-tenant relationships without Congress giving it that power. Congress had approved a temporary eviction moratorium last year, but the CDC under both Biden and former President Donald Trump asserted it could unilaterally extend it under an obscure 1944 public health law.
“Our system does not permit agencies to act unlawfully even in pursuit of desirable ends,” the Supreme Court majority wrote. “It is up to Congress, not the CDC, to decide whether the public interest merits further action here.”
The court’s three liberal justices dissented, arguing the issue merited at least hearing full arguments before ruling. They also warned of “irreparable harm” to public health if the moratorium is lifted and virus cases continue to rise.
The decision could leave millions of Americans facing eviction proceedings in the days and weeks ahead, while $46.5 billion in Emergency Rental Assistance authorized by Congress slowly trickles out of state and local relief programs. As of Aug. 27, only seven states and the District of Columbia still have eviction bans in place, and some of those could soon phase out.
“The federal eviction moratorium was a lifeline for millions of families, the last remaining federal protection keeping them safely and stably housed throughout the pandemic,” said Diane Yentel, president and CEO of the National Low Income Housing Coalition. “The tragic, consequential, and entirely avoidable outcome of this ruling will be millions of people losing their homes this fall and winter, just as the delta variant ravages communities and lives.”
According to the National Equity Atlas, nearly 6.4 million U.S. households are currently behind on rent, with estimated total debt of $21.3 billion. In a recent Census Bureau survey, 3.5 million people said they face potential eviction in the next two months.
“We’ve found that households with anyone who lost a job and those who have fallen behind on rent are significantly more likely to be evicted,” said Yung Chun, a senior analyst at the Social Policy Institute at Washington University in St. Louis. “Based on our data, most renters are a month or less behind on rent, yet as soon as they fall behind, their odds of eviction increase dramatically.”
Several studies affirmed that mass evictions during the COVID-19 pandemic would have posed a significant public health threat. Researchers at Johns Hopkins University estimated a 1% increase in evictions could result in a 4% increase in a city’s infection rate, and people who are evicted would be at 1.5 to 2.5 times greater risk of infection than if they remained in their homes.
However, the issue before the court was the CDC’s authority to issue the moratorium without explicit direction from Congress, not its effectiveness. Critics and supporters of the Supreme Court ruling agreed the responsibility now rests with Congress to act to avert a housing crisis and protect the interests of both renters and landlords.
“The government must move past failed policies and begin to seriously address the nation’s debt tsunami which is crippling both renters and housing providers alike. Only by moving past moratoriums can we ensure America’s 40 million renters have affordable homes today, tomorrow, and in the future,” said Bob Pinnegar, president and CEO of the National Apartment Association.
Tara Raghuveer, director of the People’s Action Homes Guarantee Campaign cautioned the decision could amount to a “death sentence” for many poor and working-class families. Most Americans who have rent debt are people of color or live in households earning less than $50,000 a year.
“Congress must act immediately to save lives. We need a real eviction moratorium now that is automatic, requires no declaration form, and bans all evictions of any kind, including filings, hearings, and judgments,” Raghuveer said.
Property owners maintain they have no desire to evict tenants who have suffered pandemic-related hardships, but they have their own bills to pay too. According to a report by the Harvard University Joint Center for Housing Studies, 10% of landlords collected less than half of their annual rent last year, and many had to defer maintenance or sell properties due to lost payments.
“No housing provider wants to evict a tenant—it is always a last resort and reserved for the rarest cases. The best solution for all parties is rental assistance, and all energy should go toward its swift distribution,” the National Association of Realtors said in a statement.
The Treasury Department confirmed earlier this week that only about $5 billion, or 11%, of the rental assistance funding appropriated by Congress had been distributed by state and local agencies by the end of July. The pace increased significantly in June and July and some programs have already expended more than half of their initial allocation, but most are still struggling to get money out the door.
Amid widespread anticipation that the Supreme Court would invalidate the moratorium, Treasury announced seven steps aimed at accelerating the distribution of rental relief funds. Those measures include:
The Treasury Department and the Department of Justice encouraged local jurisdictions to implement additional protections against eviction, particularly for those who have applied for assistance but have not yet been approved. The department also warned that it is required by statute to begin taking unused funds away from underperforming programs starting Sept. 30.
Unlike other pandemic relief programs where the federal government distributed money directly to wide swaths of the population, the ERA program funneled the funds through hundreds of state and local programs. Those programs, many of which had to be built up from scratch earlier this year, have encountered a range of obstacles, and many renters have had difficulties applying for assistance, if they know they are eligible at all.
“Housing advocates are mobilizing to distribute and disburse the funds,” said Edward De Barbieri, director of the Community Economic Development Clinic at Albany Law School. “Yet, governments at the subnational level are facing a variety of challenges — not the least of which is to distribute these important and critical funds.”
Of the more than 7 million households that reported being at least one month behind on rent in the latest Census Bureau survey, nearly 5 million said they had not applied for rental assistance, and 1.5 million had applications pending. Eviction filings have already returned to pre-pandemic levels in some cities, as many judges allowed proceedings to continue in recent weeks with the legality of the moratorium in doubt.
“The moratorium was effective, but it also postponed the inevitable evictions and hardship for those suffering from the impacts of the pandemic,” Chun said.
According to The New York Times, Biden administration officials had been developing strategies to respond to the lifting of the moratorium that would focus on a handful of mostly southern states that have large numbers of renters in debt and few protections against eviction. The White House reiterated a call Thursday for all cities, states, courts, and landlords to do what they can to prevent evictions.
Low-income housing advocates have pointed to Philadelphia as a model for tenant protections that other communities should look to as the pandemic persists. The city established a program that requires landlords and tenants to enter mediation and apply for relief funds before proceeding with the final phase of eviction, and officials say 90% of cases have had positive resolutions.
“We call on state and local jurisdictions to take every action they can to safeguard their most vulnerable residents,” Housing and Urban Development Secretary Marcia Fudge said Friday. “These actions should include permitting evictions for non-payment of rent only after landlords and tenants have sought Emergency Rental Assistance funds.”
A last-ditch effort to authorize a new eviction moratorium in the House failed late last month with even some Democrats balking, and there was no indication such legislation would have sufficient Republican support to pass in the Senate. Congress has also been unable to advance any reforms to the rental assistance program or other protections for renters.
Members of both parties have expressed alarm at the prospect of a wave of pandemic-driven evictions when relief has already been authorized, but potential solutions remain mired in partisanship. House Financial Services Committee Chair Maxine Waters, D-Calif., has introduced legislation that would extend an eviction moratorium through the end of 2021, recognizing more time is needed to distribute rental assistance.
“My new proposal would ensure that both renters and landlords can independently apply for emergency rental assistance so that landlords get paid their back rent, and that the program works with less bureaucracy and red tape,” Waters said Friday.
House Republicans cast blame on the Treasury and the Department of Housing and Urban Development, asserting the Biden administration mismanaged the program. They have drafted legislation they say would address unnecessary complications in ERA guidelines by requiring funds to be used exclusively for back-rent debt and reinstating a Dec. 31, 2021, deadline for state and local programs to distribute money.
“The blame for this entire situation rests squarely with the Biden administration and congressional Democrats,” said Rep. Patrick McHenry, R-N.C., ranking Republican on the Financial Services Committee. “Instead of fixing the flawed Emergency Rental Assistance program to provide support to families in need, the Biden administration extended its unconstitutional eviction moratorium.”
The White House seemed to acknowledge Friday that Congress is a dead end on this topic, opting instead to pressure states to block evictions and streamline assistance funds. Still, Psaki made clear President Biden would welcome a federal eviction ban if Congress passed one.
“If there were enough votes to pass an eviction moratorium through Congress, it would have happened,” Psaki said at a press briefing. “It hasn’t happened, so what we’re looking at now is how to achieve the objective we all share ... which is to keep people in their homes. There is means to do that in these states.”
Few states have signaled an intent to act, though, and renters in debt in many communities have vanishingly few options if they are unable to secure relief before eviction proceedings commence.
“The Supreme Court’s decision creates added confusion — in an already manic moment — about housing instability for millions of vulnerable residents of the United States,” De Barbieri said. “At a time when Congress has appropriated billions of dollars for rental assistance, much of which has gone unspent, those most likely to face eviction will move through a legal process rife with unfairness.”