Court Allows Biden’s Replacement Evictions Ban to Remain in Place for Now

WASHINGTON — A federal appeals court has allowed the Biden administration’s replacement evictions moratorium to stay in place for now, issuing a swift ruling on Friday in a politically charged case that is speeding its way toward the Supreme Court.

In a one-page, unsigned order, a three-judge panel of the United States Court of Appeals for the District of Columbia Circuit declined to block the government from enforcing the emergency public-health policy while a legal challenge to it brought by landlords, including the Alabama Association of Realtors, plays out.

The Justice Department had no immediate comment. But Patrick Newton, a spokesman for the National Association of Realtors, which is not a party to the case but supports the landlords and has been speaking on their behalf, expressed confidence that the Supreme Court would now move quickly to block the policy.

“We are disappointed in today’s ruling, but the plaintiffs will continue fighting on behalf of America’s mom-and-pop housing providers and plan to file an emergency motion to the Supreme Court immediately,” Mr. Newton said in a statement.

The Centers for Disease Control and Prevention imposed the evictions moratorium on Aug. 3 in counties where Covid-19 is raging, a category that currently covers about 91 percent of counties in the United States. It replaced an earlier nationwide ban on evictions that had been in effect since September and was extended several times.

The ban ultimately expired in July, a month after the Supreme Court allowed the moratorium to continue but strongly suggested that five justices would block the policy if the government extended it past its scheduled expiration.

President Biden, who initially had no intention of reviving the ban, reversed course in early August after coming under intense pressure to act by Speaker Nancy Pelosi and other Democrats. In the interim, the Delta variant sent new coronavirus cases soaring even as it became clear that most of the $46.5 billion that Congress had appropriated for emergency rental assistance funds had yet to reach tenants.

While Mr. Biden’s legal team advised him that issuing the revamped policy would be lawful — the Supreme Court had not issued any definitive precedent — they also advised him that the policy was likely to be swiftly struck down, according to officials. Still, Mr. Biden’s move turns out to have bought at least several more weeks to distribute the rental assistance funds.

The government first imposed the ban last year as part of its response to the pandemic. The idea was that many people were losing their jobs because of the crisis and might be unable to pay rent, potentially leading to a surge of crowding into homeless shelters and relatives’ homes that would increase the spread of the virus.

But the ban has raised legal and political complexities. At times it was explicitly imposed by Congress, but when those periods lapsed the C.D.C. extended it based on its emergency public health powers under a broadly written but vague 1944 law, which empowers the government to issue rules it deems necessary to slow the interstate spread of disease.

Landlords challenged the policy as exceeding the C.D.C.’s statutory authority, and a trial court judge, Dabney L. Friedrich of the Federal District Court for the District of Columbia, ruled that they were likely to prevail in that lawsuit and enjoined the government from continuing to enforce the policy in the interim — but she also stayed her ruling during appeals.

The litigation has since focused on whether that stay should be lifted, meaning that the government would be immediately blocked from enforcing the policy.

Last week, Judge Friedrich issued a new ruling keeping her stay in place, saying she lacked the authority to block the revamped moratorium even though she still doubted the government would ultimately prevail. The appeals court cited her ruling in reaching the same result, teeing the case up for a return trip to the Supreme Court.