WASHINGTON — By the time President Biden returned from his weekend retreat at Camp David on Monday, his White House was engulfed in a political crisis as thousands of families faced the risk of eviction in the middle of a resurgent pandemic.
Progressive Democrats were publicly assailing the administration for allowing an eviction ban to expire that past Saturday and House Speaker Nancy Pelosi, unable to secure the votes to approve an extension, was demanding Mr. Biden find a different solution.
The president, who had been largely focused on securing bipartisan support for his infrastructure bill, was caught off-guard by the ferocity of the reaction after a month in which Democratic lawmakers had been largely silent. His initial move to at least deflect blame by calling on Congress to extend the ban just two days before it expired hadn’t worked, and it infuriated Ms. Pelosi in the process.
Mr. Biden and his aides claimed their hands were legally tied by a recent Supreme Court ruling that strongly suggested — but did not explicitly say — that the nationwide evictions moratorium exceeded the government’s emergency powers under a public health law. But Ms. Pelosi did not accept that explanation.
“Get better lawyers,” Ms. Pelosi told one of Mr. Biden’s aides, according to a government official familiar with the conversation.
Mr. Biden instructed his legal staff to consult with outside experts and bring him any legally available option. Over a 36-hour scramble, the White House developed a strategy that allowed Mr. Biden to act, culminating in an announcement on Tuesday of a new, narrower eviction ban in counties where the virus is raging.
By reversing course, Mr. Biden is taking a calculated risk, opting for an iffy legal strategy in hopes of preventing a shattering eviction crisis that would hit the vulnerable people he has vowed to protect, and defuse a political backlash from the left that could endanger his larger agenda in Congress. The new moratorium is already facing a court challenge and Mr. Biden himself questioned its legal prospects hours before it was formally announced.
“The bulk of the constitutional scholarship says that it’s not likely to pass constitutional muster,” the president said on Tuesday afternoon. “But there are several key scholars who think that it may — and it’s worth the effort.”
How Mr. Biden found himself in a last-ditch, frantic effort to try to keep people in their homes and defuse a crisis that had the potential to inflict deep political damage underscores the cautious approach of a president who failed to anticipate how quickly Ms. Pelosi and other Democrats would escalate a pressure campaign aimed directly at the White House.
It is also part of a broader narrative of a White House that has responded to the rise of the variant in halting and inconsistent ways as it tries to prevent the pandemic from raging out of control.
Until the last week of July, Mr. Biden and his team had accepted that a moratorium on evictions, which was first imposed last September and had already been extended three times, would have to end for good as planned on July 31 given a recent Supreme Court ruling. While the June ruling permitted the ban to continue to its scheduled end date, it strongly suggested that five of the nine justices were inclined to strike it down past that time if Congress did not enact a new law explicitly authorizing an extension.
Instead, throughout July, the administration tried to speed up disbursement of about $47 billion in rental assistance that Congress had approved to help people pay to stay in their homes. The intention was that the money would allow renters to pay their landlords until the pandemic passed, making everyone whole.
But logistical issues and concerns about potential fraud kept much of the money from flowing. Some cities required overly complicated application forms. Many renters did not hear about the program and simply didn’t sign up. In some states, the money remained frozen because of concerns about giving funds to people who didn’t really need it. The White House, racing to disburse as much cash as possible before the freeze expired, blamed the local governments.
On July 21, Treasury disclosed just $3 billion out of about $47 billion had been deployed by the states and cities that got the money.
“It is a national shame,” Susan Rice, the director of the Domestic Policy Council, said in an interview this week, “that our state and local entities have not taken advantage of this substantial investment from Congress to prevent exactly what we are concerned about.”
Activists had been warning for weeks that renters were at high risk for being hurt once the moratorium expired, but while progressives were grumbling about the issue, it was a low roar at best from Capitol Hill.
Last Thursday, with just 48 hours to go until the moratorium expired, the White House issued a statement suggesting that Congress — and Ms. Pelosi — should enact a new eviction moratorium “without delay.” That infuriated Democrats, including Representative Cori Bush of Missouri, who had personally been evicted three times and began mobilizing a very public display of her disapproval.
The intent of the moratorium was to prevent people who were struggling financially during the pandemic from being kicked out of their homes and pushed into crowded settings — homeless shelters and relatives’ houses — spreading the virus.
But the legal authority underpinning the moratorium shifted as the crisis unfolded. Congress explicitly imposed it for periods through legislation. But when those laws lapsed, the Centers for Disease Control and Prevention extended it using a 1944 statute that empowers the government to issue rules it believes necessary to slow the interstate spread of disease.
Landlords — unable to evict nonpaying tenants — sued, calling the moratorium an unfair and illegal burden. At issue is whether the broadly worded, but vague, authority conveyed by the 1944 law extends beyond moves more obviously related to fighting disease — like quarantines — to an evictions ban.
On June 29, the Supreme Court voted 5-4 against blocking the original evictions ban. Eight of the justices had issued no opinion explaining their reasoning, but Justice Brett Kavanaugh — the swing vote — warned that “clear and specific congressional authorization” would be necessary for the moratorium to continue beyond its scheduled expiration at the end of July.
Dana Remus, the White House counsel, briefed Mr. Biden about the opinion, saying Justice Kavanaugh’s signal that next time he would join the four justices who were more skeptical of the ban precluded an extension. Policy officials, who wanted a moratorium to continue, nonetheless concurred that legal concerns meant the existing ban could not be extended, viewing it as a lucky break that they had another month to send out more housing assistance funds to soften the impact. According to one top administration official, it was like “winning something by the hair of your chinny-chin-chin.”
But as the relief money moved slowly and the Delta variant surged, members of the Congressional Progressive Caucus pressed Gene Sperling, who oversees pandemic relief programs for the White House, and Mr. Biden’s chief of staff, Ron Klain, to commit to another extension. The officials were pessimistic and noncommittal. On July 27, Mr. Sperling emailed the group’s chairwoman, Pramila Jayapal, a Democrat from the Seattle area, who gave her what she viewed as a firm “no.”
“Then we began agitating and building a chorus,” Ms Jayapal said.
That grew even louder on Friday, when Ms. Bush led a round-the-clock, four-day sit in on the steps of the Capitol to galvanize support for an extension of the moratorium.
That day, during a visit to the White House to discuss voting rights legislation, Ms. Pelosi and Chuck Schumer, the Senate majority leader, told Mr. Biden they did not have the votes to pass an extension of the moratorium.
Ms. Pelosi, who has been pressuring Mr. Klain and other officials, urged Mr. Biden to take action immediately. The pandemic no longer looked like it was winding down, as it had at the beginning of July. The Delta variant was racing through communities across the country, especially in places where low-income renters were likely to be still struggling from last year’s economic collapse. A moratorium was essential again, she argued.
The president demurred, saying the Supreme Court had made that nearly impossible. But the speaker continued pressing in what several White House officials said was the most animated they had seen Ms. Pelosi in years.
Ms. Pelosi cited the opinion of Laurence Tribe, a Harvard law professor who had argued to her that it would be lawful for Mr. Biden to extend the moratorium again. She repeatedly called Mr. Biden directly — no fewer than three times since last Friday.
As the political pressure mounted on Mr. Biden, Ms. Remus and other lawyers began taking another look at options that had looked less attractive at the beginning of the month.
There was widespread agreement, according to an official familiar with internal deliberations, that the Supreme Court’s action in June did not amount to a definitive and binding precedent. That meant, for the moment, it would not be illegal for the government to issue another ban — especially one more narrowly focused on hard-hit counties.
Yet there was also widespread concern that imposing such a ban beyond July carried severe risk that the move would be swiftly blocked in court. And a ruling definitively declaring an evictions ban illegal, they worried, could narrow the C.D.C.’s ability to take emergency steps in a future crisis.
There was no answer that came without serious downsides, but Mr. Biden’s Monday instructions were to bring him all legally available options for the dilemma.
Around noon on Monday, Martha Minow, a Harvard Law School professor consulted by the Biden legal team, said she received a call from the White House. In a subsequent discussion with administration officials, Ms. Minow and her husband, Joseph Singer, another Harvard law professor who is an expert in property law, endorsed the idea of a new, narrower moratorium.
The worsening pandemic had changed the facts on the ground, they agreed, and a more narrowly tailored ban to just the hardest-hit counties gave the government a better argument.
But even though it would be legal for the administration to take that step under current governing law, she also warned that there was a significant risk that the government would ultimately lose in court.
Another professor consulted by Ms. Remus, Walter Dellinger, a Duke University law professor and former senior Justice Department official in the Clinton administration, offered a similar take. Mr. Tribe declined to comment on his advice, but published an opinion essay in The Boston Globe on Friday defending the new moratorium as “plainly lawful.”
The executive branch legal team conveyed the complex consensus to the president: He could lawfully act, but such an edict was unlikely to survive long in court. Still, for Mr. Biden, it offered — at a minimum — a way to alleviate the political pressure to do something, at a time when his agenda can ill afford alienating allies in the closely divided Congress.
Mr. Biden decided to issue the new, narrowed moratorium. The Alabama Association of Realtors has already filed a lawsuit urging the courts to block it. A hearing in the case is scheduled for Monday morning.
“I went ahead and did it,” Mr. Biden told reporters on Thursday. “But here’s the deal: I can’t guarantee you the court won’t rule if we don’t have that authority. But at least we’ll have the ability, if we have to appeal, to keep this going for a month at least — I hope longer than that.”