Letter to Joe Biden, President of the United States - Sen. Lee, Rep. Jacobs Lead Call for President Biden to End Unconstitutional Eviction Moratorium

Letter

Dear President Biden,

We write to express our opposition to your administration's latest eviction moratorium issued by
the Centers for Disease Control and Prevention (CDC) on August 3. This latest action is plainly
unconstitutional and will only serve to further distort the market and create a housing
affordability crisis. We urge you to respect the Constitution and rescind the moratorium.

As you are aware, in Alabama Association of Realtors v. Department of Health and Human
Services, five members of the Supreme Court effectively acknowledged that CDC exceeded its
authority in issuing the moratorium.1 Justice Kavanaugh stated that "clear and specific
congressional authorization (via new legislation) would be necessary for the CDC to extend the
moratorium past July 31." Your administration has acknowledged that legal reality in several
statements, including one issued by White House Press Secretary Jen Psaki on August 2. 2

Beyond the constitutional issues, any further restrictions on evictions at this point are
counterproductive. The economy is open, jobs and vaccines are abundant, and federal rental
assistance is a reality.

Instead of pursuing an unconstitutional moratorium, your administration should be focused on
distributing the nearly $50 billion in rental assistance that was appropriated through three
separate stimulus packages. A recent Treasury report found very little of this money has been
disbursed so far,3 and your new moratorium will act as an additional disincentive for tenants to
apply for this aid, leaving property owners on the hook. Most states require the tenant to take the
initiative when applying for rental assistance. With a moratorium still in place and courts

1 After a lower court concluded that the moratorium was unlawful but then granted the government's motion to stay its order pending further litigation, the plaintiffs asked the Supreme Court to vacate the stay. Justices Thomas, Alito, Gorsuch, and Barrett indicated that they would grant the application, which suggests that they were sympathetic to the plaintiffs' argument that the moratorium was unlawful. The remaining justices voted to deny the stay application. Justice Kavanaugh issued a statement concurring with the denial, but noting that "clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July 31." Alabama Association of Realtors v. Department of Health and Human Services, 594 U.S. ___ (2021) (Justice Kavanaugh, concurring on application to vacate stay).

2 Jen Psaki, "Statement by Press Secretary Jen Psaki on EvictionPreventionEfforts." The White House, August 2, 2021.

3 United States Department of the Treasury, "Emergency Rental Assistance Data Shows Programs Ramping Up, but States and Localities Must Do More to Accelerate Aid." United States Department of the Treasury, July 2021.

severely backlogged on eviction hearings, tenants have little incentive to apply, as they are not
the ones bearing the financial burden.4

As long as an eviction moratorium remains in place, property owners will continue to struggle
financially. The moratorium effectively forces property owners to provide a good without
compensation. Meanwhile, these property owners must still pay mortgages, taxes, and
maintenance for the dwelling. If this continues much longer, we will see a wave of bankruptcies,
foreclosures, and blighted properties that will negatively affect housing affordability.
We demand you end this moratorium and allow the rental assistance funds to do what they were
intended to do. This government overreach must end.

Sincerely,