Wednesday, August 4, 2021

Joe Did What? Rent


Charles "Careless Whispers" Cooke of the National Review got prematurely excited when he was celebrating the end of the CDC's Covid emergency eviction ban scheduled for 31 July, and the joyous anticipation of seeing tens of thousands of people unable to pay their rent put out on the street, because it didn't happen, at least not yet. Whether exclusively because of the homelessness demonstration of Rep. Cori Bush camping on the Capitol steps or not just that, President Biden reversed his decision to let the ban lapse if Congress failed to renew it, and the CDC has issued a two-month extension on the order.

It's a bit of a mystery what Biden was intending to do on this in the first place, as Ed Kilgore said, or why it took him so long to act, except that it had to do with a Supreme Court decision—

in late June the U.S. Supreme Court put the world on notice that it would not accept the legitimacy of the CDC’s eviction moratorium (in place since last September) beyond the end of July, unless Congress acted to give it a statutory basis. For reasons that remain obscure, the administration waited until the 11th hour to deal with the problem, then Joe Biden himself issued a panicky request that Congress bless the moratorium with legal authority to continue, when it was really too late for it to happen before the moratorium expired on July 31.

—but there's also some serious misunderstanding about what the Supreme Court actually did in June, which is not, as a lot of people, including Cookie, think, that they found the moratorium was unconstitutional:

There are rules here — rules that Bush, Waters, and others have taken an oath to uphold. And under those rules, as suggested by the plain text of the Constitution and confirmed by the Supreme Court, the CDC has “exceeded its existing statutory authority by issuing a nationwide eviction moratorium.” That being so, the eviction moratorium must end.

The Supreme Court confirmed nothing of the kind; in fact it upheld the moratorium against the claims of the Alabama Association of Realtors, in a vote of 5-4, without comment, except for a concurrence by Justice Kavanaugh, who said that he personally didn't think the CDC had statutory authority to issue a nationwide moratorium, and he thought he'd vote against extending it beyond the July deadline unless Congress gave it the statutory authority, but he was in fact fine with keeping it going until the end of July anyway:
Because the CDC plans to end the moratorium in only a few weeks, on July 31, and because those few weeks will allow for additional and more orderly distribution of the congressionally appropriated rental assistance funds, I vote at this time to deny the application to vacate the District Court’s stay of its order.

So it wasn't that illegal, he was saying, but please don't ask me to do it again. And in that sense it wasn't the Court "putting the world on notice", just Kavanaugh announcing his own plans to leave the majority of this decision (with Roberts, Breyer, Kagan, and Sotomayor) and create a different one (with Thomas, Alito, Gorsuch, and Barrett), unless Congress did something to change his mind. And the reasons he felt it wasn't so terribly illegal as all that had to do with the fact that Congress had expressed a relevant intention, in the form of appropriations for rent relief.

Because—this is important—the eviction moratorium wasn't intended to cost landlords any money: Congress had appropriated $46 billion to cover it; also, simultaneously, they were protected by a moratorium on mortgage foreclosures, funded by another $10 billion. The Alabama realtors weren't suing over a real harm, either, which is why they were denied. Nobody would suffer from the two moratoriums except banks, which would also eventually get their money, though they might have to wait for it.

That is, the CDC claimed the ability to declare an eviction moratorium in terms of its own mandate,

The CDC, as the U.S.’s primary agency for taking action to stop the spread of disease, has broad authority under the Commerce Clause of the Constitution to restrict travel into the country and between states of an infected person or a person who has come in contact with an infected person,

in the sense that throwing tenants into the street would contribute to disease spread, but the Court's majority including Kavanaugh connected that, rightly, to the money appropriated by Congress to pay for it. Kavanaugh's language suggests that the eviction moratorium was justified by the need to carry on distributing the money, so that it ought to be ended when the money ran out, which may not be generous but makes some sense.

Only nobody, especially Kavanaugh, appears to have realized how slowly and unevenly the distribution of rental relief had been proceeding from its beginnings in December:

Six months after the aid program was approved by President Donald Trump in December, just 12 percent of the first $25 billion in funds had reached people in need due to loss of income from the pandemic, according to the Treasury Department. More than three months after President Biden signed a March relief package with another $21.5 billion for the program, even less of that has been spent.

And by mid-July, a couple of weeks before the (Kavanaugh-approved) moratorium was due to expire, it still hadn't improved:

Housing advocates blame the delays on unnecessarily complex paperwork and arduous and unclear requirements.

“They’re demanding things that many tenants don’t have, like the landlord’s email address, for example,” said Dan Rose, an assistant professor of sociology at Winston-Salem State University and an organizer with Housing Justice Now. “They’ve also done a terrible job communicating with tenants.”

Rose estimates that just about 5% of the rental assistance allocated to Winston-Salem and Forsyth County in North Carolina have gone out to tenants by now....

Colorado’s state program has only approved or distributed 1.5% of its funding, according to data provided to CNBC by the National Low Income Housing Coalition. Wyoming’s program, meanwhile, has handed out just 0.1% of its assistance....

Landlords are also frustrated with the rollout of the aid.

“State and local distribution programs that deviate from congressional intent, enacting haircuts or caps on back-rent, leave rental housing providers to unfairly absorb the debt and ultimately threaten the future of housing affordability,” said Greg Brown, senior vice president of government affairs at the National Apartment Association. 

In other words, it's state governments, as usual, and the lousy companies they hire to create their web platforms, and not just Republican states, by the way: New York (which has distributed just $117,000 of its $2.7 billion allotment) is doing pretty badly too, for instance, though Governor (pro tem) Cuomo says New York will get it done by the end of August.

So that's why the moratoriums need to be extended again, and why Biden finally acted in the way he has—attempting to forestall Kavanaugh by not being an extension of a "nationwide eviction moratorium" but a new order that

applies to renters in areas with recent COVID-19 case surges. According to President Biden, those areas experiencing high levels of community transmission cover an estimated 90 percent of all U.S. renters.

and invoking the fact that the disease is not at all under control yet, which ought to make a difference. And hoping that Congress will pick up the ball when the Senate returns from its August recess.

It remains to be seen whether the Alabama realtors are going to want to come back for another round—I'm really afraid the association might prefer throwing people out to getting their money—or how Kavanaugh will react (or on what timetable), but we may well muddle through this phase, so don't panic.

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