Legal challenges to eviction bans, both those associated with Covid-19 and others, are struggling across the country. It’s true that the ban promulgated by the Centers for Disease Control recently suffered a set back, but it is likely the government will rework the ban. Additionally, that ban carries with it substantial documentation of impact on a resident by Covid-19, something many local bans like ones in Washington State don’t. Legal cases against more onerous local bans, like Seattle’s winter eviction ban, appear to be failing because they are facial challenges arguing that bans abrogate due process rights. This approach isn’t working.

Simply put, the best legal challenges are ones that involve an actual harmed party. A legislature makes a law, for example, that causes a person to be forced out of business. That person files a legal challenge arguing that the law didn’t allow her to a process to object to the implications of the law. A facial challenge is when a plaintiff argues that the law will to result in a bad outcome or is on its face inconsistent with the federal or state constitution.

These cases are hard to sustain because lawyers for local government are able to thread the needle; they’ll write laws that have a process that although arduous or that will produce adverse results, still are a process. Consider the recent failed effort of a legal challenge of eviction laws in Seattle that affect evictions in winter and six months after the end of the Covid-19 emergency.

The Judge laid it out pretty clearly in her decision why this and other challenges fail (you can read the full decision below).

“Because Plaintiffs bring facial challenges to the Ordinances, the Court must reject Plaintiffs’ claims “if there are any circumstances where the [challenged law] can constitutionally be applied.”

Because there is no case pending, the lawyers have a difficult burden of proving that there is no case in which the law could be applied constitutionally. That’s harder than proving a case where it might not be constitutional. These facial challenges often fail because the government usually points to the process leading to adverse outcomes.

“Plaintiffs cannot sustain their burden, however, with respect to the remainder of their claims [that housing providers are due interest payments]. Under controlling Washington case law and the persuasive California case law on which it is based, the Ordinances establish substantive defenses that this Court can harmonize with Washington’s procedural eviction statutes.”

I have always been dubious of a facial challenge of the winter eviction ban. The winter eviction ban in Seattle is explicit that it creates an “affirmative defense” against removal based on the calendar. If you’re about to be evicted in December, you can tell the judge, “It’s December,” and prove that by pointing to a calendar. This does not prevent the housing provider from filing the eviction nor does it mean the judge can’t decide that the removal can proceed anyway because of other factors, including a threat to safety which is in the ordinance on winter evictions. In this way, the process is preserved although the outcome is almost certainly going to favor the defense most of the time.

The decision goes on,

“To prove their procedural due process claim, Plaintiffs must “first identify a property right, second show that the state has deprived him [or her] of that right, and third show that the deprivation was effected without due process.” Elmsford Apartment Associates, LLC v. Cuomo, 469 F.Supp.3d 148, 172 (S.D. New York 2020) appeal docketed, No. 20-2565 (2nd Cir. July 28, 2020) (internal citations omitted). Plaintiffs fail to sustain their burden on these elements.”

You don’t need to read all those citations in depth to get the point: allowing the resident to claim, “it’s cold outside” as a defense against removal is not a taking or private property “without due process.” It will get warm outside someday and the housing provider got their day in court.

Make no mistake, the efforts by eviction lawyers to prolong the eviction process and fill it with land mines is, in effect, taking away the use of private property for rental housing. It may be true, technically, that there is a process through which a housing provider can recover her property, but the loss of income and the risk of an endless process means higher barriers to entry for providers and others selling their housing to owner occupiers. This means less housing.

Unfortunately, courts are not going to undo the bad policy because it is bad policy. It is appropriate that courts resist the urge to become black robed legislators. However, it only makes my point more vivid, that we must change the narrative that allows legislatures to make policy that have a negative impact on poor people by destroying the incentives to create rental housing they can access. If voters understood this, perhaps elected officials would respond with better policy. For now, courts are not going to solve this problem.