A lawsuit filed Thursday in the Northern District Court of Illinois is the second and latest challenge to the Biden Administration’s attempt to halt all residential evictions from taking place nationwide amidst a surge in coronavirus cases.
Two landlords with properties in Cook, DuPage, and Will Counties -- as well as the Illinois Rental Property Owners Association -- are the latest to dispute in court the Centers for Disease Control and Prevention’s power to issue another eviction moratorium, as it recently did in response to an uptick in infections.
The Illinois lawsuit comes after another legal challenge was filed in the District of Colombia by landlords in Alabama and Georgia. That lawsuit sparked skepticism from a District Court Judge that the Biden Administration’s latest eviction order could survive a legal challenge, but ultimately, the judge said on Friday that her “hands are tied” and she refused to block the ban.
Now, all eyes could turn to the pending lawsuit in Illinois.
Attorney Daniel Suhr, representing the Illinois landlords, tells NBC 5 Responds the fact that there are challenges to the latest order from several states “points to the underlying reality that the Supreme Court needs to decide this with a single rule for the country.”
Caught in the crossfire of these legal challenges are tens of thousands of tenants who are fearful of the possibility of homelessness and landlords who say they’re out of options after more than a year of missed rent payments.
As a federal moratorium on evictions expired at the end of July, on Aug. 3, CDC Director Rochelle Walensky issued a health order halting all evictions in areas experiencing “substantial” or “high” rates of community transmission of COVID-19. That list now includes all 102 counties in Illinois, according to the CDC’s COVID-19 tracker.
Walensky said the temporary pause on evictions is an “effective public health measure” to prevent the spread of the virus, including the new emerging variants.
The order is in effect through Oct. 3 of this year.
Opponents have been quick to question whether the CDC has the authority to impose such an order and point out that a U.S. Supreme Court ruling may already end the debate over that question.
Earlier this year, the Court issued a ruling suggesting that the CDC did not have the authority to issue a future eviction ban or order, adding that the CDC needed congressional approval if it wanted to extend the ban already in place.
That previous challenge to the CDC’s eviction moratorium ended with the Supreme Court returning a 5-4 vote allowing the ban to remain in place through the end of July.
But, Justice Brett Kavanaugh wrote in his opinion that if the CDC wanted to extend the prohibition on evictions any further, it would need “clear and specific” authorization from Congress.
Upon the moratorium’s expiration, the Biden Administration did not have congressional support to extend it further, nor did it believe the CDC had the legal authority to extend it.
On Aug. 2, White House Advisor Gene Sperling said in a briefing, “The President went out of his way to push the CDC to look at… even counties with higher infections. And the CDC independently came back and said that they could not, at this time, find the legal authority.”
But the next day, the CDC moved forward and issued the new eviction moratorium order targeting areas with “high” or “substantial” rates of infection, which includes most of the country.
Attorneys representing landlords in federal court have cited the administration’s own words, calling the new ban “unlawful.”
“President Biden and House Speaker Nancy Pelosi then attempted but failed to gather sufficient votes in the House of Representatives to modify the CDC’s statutory authority to extend the moratorium,” reads the Illinois lawsuit. “Nevertheless, after President Biden, the White House press secretary, and CDC all publicly stated the CDC lacked the legal authority to put a new eviction moratorium in place, on August 3, 2021, the CDC once again halted residential evictions.”
Neither the CDC nor the Department of Health and Human Services responded to NBC 5 Responds’ requests for comment on the latest legal challenge.
In response to the legal challenge filed in Washington, the federal judge in the case, Judge Dabney Friedrich, said of the Biden Administration, “It's really hard to conclude that there's not a degree of gamesmanship going on."
But on Friday, Friedrich said she is bound by a DC Court of Appeals conclusion last spring that an earlier version of the moratorium, based on the same claim of authority the CDC is making now, should be allowed to remain in effect as a public health measure.
Judge Friedrich said absent that appellate ruling, she would “vacate the stay” and block the moratorium, but her “hands are tied.”
An Aug. 27 hearing date has been scheduled for the Illinois case before Judge Edmond Chang. Judge Chang has requested all parties -- including the Biden Administration -- to file a joint status report on the case by Aug. 19.
Attorney Suhr with the Chicago-based Liberty Justice Center said even with the lawsuit in the District of Colombia, the lawsuit filed in Chicago was “necessary to protect our clients in Illinois.”
“(The nationwide mandate) isn’t solving a problem, it’s just putting a thumb on one side of the scale and shifting where the economic pain is instead of getting to the underlying problem here,” Suhr told NBC 5 Responds.
Meanwhile, the number of tenants and homeowners who could be facing eviction or foreclosure in the next two months is staggering.
NBC 5 Responds found more than 109,000 Illinoisans indicated in the recent U.S. Census Bureau's Household Pulse Survey that it was “likely” that they will face eviction in the next two months; more than 19,000 stating a foreclosure was “likely.”
Hundreds of eviction orders have already been filed in Illinois courts, but a state moratorium and supreme court ruling temporarily prevent them from moving forward.
Legal housing advocates are stressing tenants and landlords seek out resources from the state that are currently available.
“Rather than challenging this moratorium, our focus really needs to be making the rental assistance work,” said Michele Gilbert, Legal Director for the Lawyers Committee for Better Housing. “Getting the money to the landlords is better than the landlords evicting people. That will cause not only people to become homeless; it will cause the landlords to have empty units.”
For a complete guide of Illinois rental assistance resources available for both landlords and tenants, click here.