The Biden administration wants states and cities to reimpose eviction bans. What will Kansas do?

Andrew Bahl
Topeka Capital-Journal
President Joe Biden's is pushing states with high levels of COVID-19 transmission to reimpose moratoriums on evictions and foreclosures, although such an option is unlikely in Kansas.

President Joe Biden's administration appears set to reinstitute a half on evictions in areas hardest hit by COVID-19, a standard which is likely to include most, if not all, of Kansas.

It marks a significant shift from Monday, when federal officials were calling on state and local governments to issue their own bans, with options for a nationwide moratorium appearing to wane. The odds of Kansas instituting a freeze of its own appear to be slim.

The Centers for Disease Control and Prevention ban will cover counties with "high" or "substantial" community spread of COVID-19, which applies to all but 11 counties in Kansas and could cover as much as 90% of the country. It is set to be in place for 60 days.

Reimposing a federal-level ban is considered legally complex, with the previous moratorium expiring at the end of last month. There are thoughts the more targeted moratorium could avoid such a minefield, although even federal officials are uncertain how the courts will respond to the order.

While many considered the federal eviction ban to be far from ironclad, there is concern over the trend lines after the protections ended on July 31.

U.S. Census Bureau data shows 30% of tenants who are behind on payments fear eviction in the next two months. While that figure is below the national average, it is a marked increase over last month.

Marilyn Harp, executive director of Kansas Legal Services, a non-profit law firm helping low and middle income Kansans, said there will still be legitimately filed evictions on the docket in courts across the state, even with the new moratorium.

"It is not a dead issue," she said.

Political, legal hurdles make state-level moratorium unlikely

But there are several factors preventing a statewide eviction ban from being an option again and it is unclear that local leaders are willing to take up the mantle, even as COVID-19 infections — fueled by the delta variant — continue to rise. The state saw an increase of 1,700 cases over the weekend, including more than 400 new variant cases reported. 

To begin with, a state-level ban would be logistically difficult. The state is no longer under a COVID-19 emergency declaration, meaning Gov. Laura Kelly would lack the standing for issuing an executive order on the matter, as she did for late 2020 and much of 2021.

And then there are the political realities. Top Republican lawmakers, who moved to end the state-level eviction moratorium in May as part of a deal to temporarily extend the emergency order, have been skeptical of its need and the effects it has on landlords.

In a statement, Kelly spokesperson Reeves Oyster blamed Republicans for ending the order in the first place but didn't weigh in on whether some sort of moratorium should be crafted currently, instead encouraging residents to apply for state aid.

But House Speaker Ron Ryckman, R-Olathe, said the improved economy meant that employers were desperate for workers, making the need for an eviction ban less necessary.

"When it first came up and COVID first started, folks were laid off and not able to make money," he said. "We're not in that situation right now. Right now we have folks begging people to come back to work." 

President Joe Biden asked the CDC on Sunday to consider whether it could extend the moratorium further, even if it was only a more limited ban targeting states like Kansas with high rates of COVID-19 transmission.

But a U.S. Supreme Court decision earlier this year questioned the legal standing for the agency to issue the ban. A majority of justices left the ban in place through July but said any future extensions would need to do through Congress.

Any sort of federal ban would mark a reversal, with Biden administration officials saying Monday that a more targeted moratorium would be legally dubious.

"The president has not only kicked the tires, he has doubled, tripled, quadrupled-checked," said Gene Sperling, a White House senior adviser who is overseeing Biden's American Rescue Plan implementation. 

Residents asked to look to aid programs instead

Instead of evicting tenants unable to make their payments, the White House urged landlords to hold off for 30 days and seek federal emergency rental assistance to be compensated.

In Kansas those funds have gone to the Emergency Rental Assistance program, administered by the Kansas Housing Resources Corporation. A separate fund just for Wichita renters exists as well.

A backlog of applications has frustrated officials and renters alike. Data from the KHRC as of Tuesday shows that 4,054 of the more than 9,000 applications have been handled, with an additional 3,000 under review. About $22 million in aid has gone out, the agency said.

State and local officials are pushing residents to apply for aid programs in light of the federal moratorium on evictions and moratoriums ending.

That is a far cry from the agency's backlog in recent months, although it has not been entirely cleared. The Wichita program has similarly seen an uptick in the number of applications processed.

Still, the program isn't ironclad. Landlords argue tenants aren't always willing to fill out the paperwork required to apply, while renters say they don't always get support from their apartment owners to seek out the funds — something which is required in Kansas, as the landlord and tenant must for now apply jointly.

And while the state is expecting millions more in funding to come as part of a package of rental support approved earlier this year, the U.S. Treasury Department has been slow in getting the funding out the door to all states.

There is also no indications that local governments will consider their own moratoriums. Molly Hadfield, a spokesperson for the city of Topeka, didn't say if a local eviction freeze was on the table. 

Instead, she noted local officials had provided relief funds to the Community Resources Center — funding which remained available as of Tuesday.

Other local nonprofits, such as the Salvation Army and Community Action, had received grant funds of their own for the purpose and Hadfield said the city was working with the Topeka Housing Authority to fill emergency housing vouchers as needed.

The future is unclear. Even Biden acknowledged that the new, targeted eviction ban might get thrown out in court. But his administration appears comfortable taking that risk, noting it would buy time for residents to get the aid they need to stay in their homes.

Harp echoed that sentiment.

"We can encourage tenants to apply for KERA," she said. "And we can ask landlords just to take a breath and not evict people and work with their tenants to get KERA and make themselves get all the money they're owed."