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We walked the father through a document called the Eviction Protection Declaration. He checked off the appropriate boxes attesting that he was eligible for protection from the US Centers for Disease Control and Prevention (CDC) moratorium on evictions, then he signed his name. We hustled down the hall and quickly filed the form with the court clerk. It seemed that the family’s housing was secure for a few more weeks, during which time the dad could catch up on the rent.
A few hours later, six justices of the US Supreme Court threw the whole family out in the street.
They are not the only ones. An early-August US Census Bureau survey showed that eight million Americans are behind on rent, with 3.5 million of them saying they are likely to face eviction in the coming months. The CDC moratoriums were created in response to a simple fact: few things will inflame the COVID pandemic more than hordes of people being forced into shelters or doubled-up housing. For the half of all renter households that lost income during the pandemic, the halt on evictions was a lifeline, especially since only six states and the District of Columbia have separate moratoriums.
But a majority of the Supreme Court was unmoved, ruling in an unsigned opinion in favor of landlords who sued to stop the latest moratorium. The justices’ claimed rationale was that Congress should clearly order an eviction ban itself or more explicitly give the CDC that authority. That is a shaky conclusion, given the broad powers Congress had already given the CDC and the precedent of eviction moratoriums in response to pandemics.
But the justices found their voice in a ringing lament for the plight of corporations and individuals accustomed to reaping income in the form of rent paid by struggling tenants: “Despite the CDC’s determination that landlords should bear a significant financial cost of the pandemic, many landlords have modest means,” the justices wrote. And they reaffirmed the Court’s reliable stance elevating private property interests over public health or any other social good: “Preventing (landlords) from evicting tenants who breach their leases intrudes on one of the most fundamental elements of property ownership — the right to exclude,” they wrote.
Congresswoman Cori Bush, whose remarkable July sit-in on the Capitol steps helped shame the Biden administration into creating the most recent moratorium, pierced the Court’s rhetoric, naming its real-world implications: “We already know who is going to bear the brunt of this disastrous decision — Black and brown communities, and especially Black women,” said Bush, who herself has endured evictions several times.
Bush and others are urging Congress to create a new moratorium, but it appears more likely that the last hope for families on the verge of eviction are state and local governments. That hope is a slim one, given the breathtaking failure of those governments to even distribute the $46.5 billion in rental assistance that Congress has approved. As of the end of July, almost 90 percent of those funds have gone unspent, despite millions of renters being in crisis.
The single dad facing eviction had tried without success to apply to our local rental assistance program, which demands the uploading of documents by persons who often do not have computer access. Ultimately he gave up, concluding he was ineligible due to his past work history, even though he clearly qualified.
Among the people facing eviction who our Health and Human Rights Clinic works with, his experience with the program is common. In most places around the country, there is little promotion of the programs and even less help for those who are stymied by the red tape involved. In our state, the agency tasked with distributing hundreds of millions of dollars in available assistance has only paid out 7 percent of it.
“Nobody is this incompetent. Nobody,” Andreanecia Morris of the affordable housing group HousingNOLA in Louisiana told Politico last week. “At the end of the day, this is systemic bias — this is anti-Black racism, anti-renter bias, anti-poor people bias. […] There isn’t any other explanation for this level of ineptitude.”
After the Supreme Court ruling, the Biden administration renewed its calls for the states and local governments to step up aid to renters. The Treasury secretary, attorney general, and HUD secretary sent a letter to governors, mayors, and state courts urging them to press pause on displacing people while the rental assistance money was still unspent.
“Our bottom line is this: No one should be evicted before they have the chance to apply for rental assistance,” they wrote. “And no eviction should move forward until that application has been processed.”
The Treasury Department also released new guidelines designed to make the rental assistance application process easier, including allowing tenants to self-attest to some eligibility requirements.
But that just begs local officials to honor the rights of people they have proven intent on ignoring. Low-income rental households are disproportionately persons of color. From refusing to expand Medicaid to rejecting unemployment benefits in order to force desperate people into poverty-wage jobs, the federalism ideal of relying on the states to protect human rights of their residents is a fraud. Tenants can expect the latest Biden pleading to be ignored, given that even the CDC moratorium itself was brushed aside by many state court judges in recent months.
For our clients and millions of others like them, the next few months are likely to be grim. Perhaps their best hope is, perversely, that the abrupt removal of the moratorium and the massive failure of the rental assistance program — always short-term band-aids — will yield an eviction crisis so dramatic that it forces a long-overdue reckoning with the fundamental injustice of US housing policy.
Widespread struggle across the nation could serve as the platform for building power to push real housing reform that reverses the US practices that richly reward corporate landlords and high-income homeowners, while short-changing tenants. That reform would create social housing on a huge scale and ensure permanent rent support to all who are eligible. The Supreme Court has spoken, making it clear that it considers housing to be nothing more than a profit-extracting commodity. It would be an ideal time for the US people to stand up in response and insist that housing is a human right.
Fran Quigley directs the Health and Human Rights Clinic at Indiana University McKinney School of Law.