Landlords and real-estate trade associations from Alabama and Georgia asked the court last week to lift the ban, set to run through Oct. 3. The challengers say the moratorium exceeds the authority Congress has given the U.S. Centers for Disease Control and Prevention.

The Supreme Court has already indicated it’s likely to be skeptical of the administration. The court left intact a previous CDC moratorium in June, but Justice Brett Kavanaugh said in casting the pivotal vote that congressional authorization would be required for any further extension.

Congress didn’t act and progressives instead pressured the Biden administration to issue a new, narrower moratorium, which applies in areas of “substantial or high rates of community transmission” of the coronavirus.

In a court filing Monday, acting U.S. Solicitor General Brian Fletcher said the new moratorium was even more necessary than the previous one, which expired July 31.

“The CDC has warned that the public health consequences of an increase of evictions at this time would be very difficult to reverse,” Fletcher argued.

In making the case for the latest moratorium on Aug. 3, President Joe Biden acknowledged the legal odds were long.

“The bulk of the constitutional scholarship says it’s not likely to pass constitutional muster, number one,” Biden said. “But there are several key scholars who say that it may and it’s worth the effort.”

Biden said the legal fight would give local governments more time to distribute emergency funds to people who’ve fallen behind on rent. Congress has granted almost $47 billion in rental assistance, but bureaucratic delays have kept much of that aid from reaching the needy.

The case is Alabama Association of Realtors v. Department of Health and Human Services, 21A23.

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