It was expected that once the national eviction moratorium came to an end, things would get messy.

However, having the applecart upset before that storm even hit was a bit unexpected, and yet – here we are.

Rental assistance money is not being handed out as quickly as it should.  With a lot of renters in danger of being evicted from a home they insist they can’t pay for because of the pandemic, the Biden Administration, through the Centers for Disease Control and Prevention (CDC), once again extended the moratorium – this time through October 3. Despite saying at the time that the last extension, which expired July 31, would be the last time it was extended, this moratorium is being considered a “new” one.

It is a gamble by the administration and may be a move that comes off as a bit of “gamesmanship” on the part of the President.

When the last extension was enacted in June, the Supreme Court of the United States voted 5-4 to allow it to reach its conclusion but opined that the CDC had overstepped it’s bounds by continuing the moratorium for so long.

Although the Supreme Court slightly left the door open for interpretation as to what their next ruling would be if the moratorium was extended yet again, Justice Brett Kavanagh made it clear that he would vote against any further extensions, which could swing the vote if it happens to come before the Supreme Court again.

But there are other legal hurdles this latest extension would have to traverse before it gets back to the Supreme Court.

Trying to put an end to the moratorium

The Alabama and Georgia state REALTOR® associations—along with two housing providers and their property management companies—filed an emergency motion in federal court to block this latest action by the CDC.

Although the latest moratorium language was cleverly composed to be narrower in scope initially – saying it would only be extended in areas with high transmission of COVID-19, at the time it was ordered – it still covered about 90% of all renters in the U.S.  And, with the continued spread of the Delta variant of the coronavirus, it likely could get back to covering 100 percent of all renters.

The new language was designed to circumvent the Supreme Court ruling which required Congressional approval of any new legislation that would allow for a moratorium to be created or extended. Despite a desperate plea from President Biden to Congress two days before the moratorium was set to expire in July, Congress could not pass any new legislation.

Biden was then pressured by those in his own party, including Speaker of the House Nancy Pelosi, to file an extension anyway and see what would happen.

The Alabama and Georgia REALTOR® associations are now asking a judge to uphold the Supreme Court’s interpretation, and that judge, U.S. District Court Judge from the District of Columbia, Dabney Friederich, is considering blocking the latest ban.

“Given that this order is almost identical to the CDC’s earlier order, as to the effect of it, it’s really hard … to conclude that there’s not a degree of gamesmanship going on,” Friedrich said, according to Politico.

However, the Department of Justice (DOJ) has argued in court filings that this isn’t an extension of the previous moratorium, but rather a brand new one. They believe it is necessary to continue helping struggling renters as spread of the Delta variant explodes in the U.S.

If Friedrich does block the ban, the DOJ will almost certainly appeal the decision, which would keep the moratorium in effect while the appeals process plays out.

Ensuring people stay in their homes after the moratorium ends

But housing providers say the moratorium, which the CDC first put in place last September, has cost them more than $13 billion per month in unpaid rent, and they continue to urge for swift deployment of federal rental assistance as the solution.

Here’s the problem: according to a report in the New York Times, the Department of Treasury disclosed on July 21 that $3billion out of $46 billion in Congressionally approved rental assistance money had been given to the renters who needed it, while the states and cities who got the funding have been sitting on the rest.

Throughout July, the Biden Administration tried to expedite the disbursement of the remaining dollars, money that would have allowed renters to pay their housing providers during the pandemic and make everyone whole. But their efforts were fruitless.

According to the Times, logistical issues and concerns about potential fraud kept much of the money from flowing. Some cities required overly complicated application forms. Many renters did not hear about the program and simply didn’t sign up. In some states, the money remained frozen because of concerns about giving funds to people who didn’t really need it.

“It is a national shame,” Susan Rice, the director of the Domestic Policy Council, told the Times, “That our state and local entities have not taken advantage of this substantial investment from Congress to prevent exactly what we are concerned about.”

Housing activists had been shouting at the tops of their lungs for months that once the moratorium expired, a large number of renters would suddenly be at high risk of becoming homeless.

The National Association of REALTORS® (NAR) has been pushing hard for the rental assistance money to be distributed and done so in a timely fashion.

“About half of all housing providers are mom-and-pop operators, and without rental income, they cannot pay their own bills or maintain their properties,” NAR President Charlie Oppler said in a statement. “NAR has always advocated that the best solution for all parties is rental assistance paid directly to housing providers to cover the rent and utilities of any vulnerable tenants during the pandemic. No housing provider wants to evict a tenant and considers it only as a last resort.”

When meeting with reporters after announcing the “new” moratorium, Biden admitted that the way he and his administration went about it was a risk and that it could be vulnerable in court, but that the appeals process would allow it to continue long enough to get more of the rental assistance money into the hands of the renters who need it.

“I went ahead and did it,” Biden said, according to the Times. “But here’s the deal: I can’t guarantee you the court won’t rule if we don’t have that authority. But at least we’ll have the ability, if we have to appeal, to keep this going for a month at least — I hope longer than that.”