Judge J. Campbell Barker of the Eastern District of Texas, sided with plaintiffs who challenged the CDC’s eviction moratorium on Constitutional grounds. We’ve embedded the opinion for Terkel v. Centers for Disease Control and Prevention at the end of this post. Even though some will be inclined to dismiss the ruling as politically-motivated (Barker was a Trump nominee), recall that it was the Trump Administration that first launched the eviction freeze. It initially ran through December 31, and covered tenants who gave their landlord a declaration attesting that the made less than $100,000 a year, had suffered a large hit to their income, were seeking assistance and would pay as much rent as they could. The Biden Administration planned to extend the moratorium to the end of March.
Bear in mind that the eviction halt dumped the cost of keeping coronavirus-whacked workers housed on landlords, rather than having the government provide income or rental subsidies.
Before we turn to the reasoning of the ruling, keep in mind that Judge Barker did not issue an injunction against the CDC’s moratorium, since the CDC apparently made noises at trial that they’d withdraw the moratorium if they lost. However, Barker told the plaintiffs they could come back and seek an injunction if the CDC didn’t play nice. There is no indication yet as to whether the Administration will appeal.
Constitutional law is often a slippery area of jurisprudence, but this short ruling is well argued. The Administration declared that its authority to impose the moratorium resided in the Commerce Clause: “To regulate commerce with foreign nations, and among the several states, and with the Indian tribes” and the Necessary and Proper Clause.
The obstacle for the defendants is that the Commerce Clause has been found to cover interstate commerce, and instrastate commerce to the extent that it also impacts interstate commerce. For instance, in 2005, in Gonzales v. Raich, the Supreme Court upheld Federal regulation of within-state marijuana production, since having some states permit marijuana farming and sales would clearly lead to sales in neighboring states.
The ruling on which Barker relied most heavily was United States v. Lopez, a 1995 Supreme Court decision challenging a prosecution under the Gun Free School Zones Act of 1990. The defense argued that the Federal government lacked the authority to regulate guns at local schools, while the Department of Justice argued that it fell under the Commerce Clause, since violent crime in schools would affect the economy generally. The Supreme Court sided against the government, using three tests, as cited here:
(1) “the use of the channels of interstate commerce”; (2) “the instrumentalities of interstate commerce, or persons or things in interstate commerce”; and (3) “those activities having a substantial relation to interstate commerce, . . . i.e., those activities that substantially affect interstate commerce.”
Dirt law has long been reserved to the states and looking at those tests, you can see why. Both sides agreed to argue whether the moratorium met the “substantially affects” standard. The court had to determine if enough information has been presented for it to conclude this test had been satisfied. There are then at least four subordinate considerations, per a 2000 Supreme Court decision, United States v. Morrison:
(1) the economic character of the intrastate activity; (2) whether the regulation contains a “jurisdictional element” that may “establish whether the enact-ment is in pursuance of Congress’ regulation of interstate commerce”; (3) any congressional findings regarding the effect of the regulated activity on commerce among the States; and (4) a attenuation in the link between the regulated intra-state activity and commerce among the States
Judge Barker made a pretty conventional “real estate is local, buildings don’t move across state lines” contention. But he also pointed out that the “substantial effects” test is to be applied solely to the “regulated activity,” which here is eviction. The CDC moratorium made a point of not impairing the landlord’s economic claims: the tenants still owed any un/underpaid rent. Judge Barker found that the two cases that the government cited didn’t support its contention that eviction “affected commerce” to the required Constitutional standard. The Supreme Court in Lopez had already rejected “everything is connected, so everything affects interstate commerce” type arguments. The fact that coronavirus crosses state lines does not even begin to make an explicit connection to how stopping evictions would have a substantial effect on interstate commerce.
The government was only able to make general claims, of the sort that “reducing homelessness will keep people out of shelters, which can spread Covid” and “15% of the people who change residence go across state lines.” Judge Barker retorted that public health falls under state and local policing powers, so the arguments about shelters or other health hazards didn’t establish Federal authority. On top of that, the CDC order was not devised to limit disease spread to other states:
The order applies without regard to a tenant’s infection with, prior exposure to, or vaccination against COVID-19. It applies without regard to whether an evicted tenant would move to a new city, much less a new State.
As for the 15%, not only was the data not specific to evictions, but even if it were, even higher levels moved across state lines as the result of marriage and divorce, yet that condition didn’t result in Federal government being able to circumvent the states in family law matters.
It didn’t help that government had to admit that its claims about its Constitutional power would empower eviction moratoriums for any reason, including its beliefs about fairness.
Barker’s key point:
The federal government cannot say that it has ever before invoked its power over interstate commerce to impose a residential eviction moratorium. It did not do so during the deadly Spanish Flu pandemic….. Nor did it invoke such a power during the exigencies of the Great Depression. The federal government has not claimed such a power at any point during our Nation’s history until last year….
The absence of an historical analog here calls to mind the Supreme Court’s instruction that “[p]erhaps the most telling indication of [a] severe constitutional problem . . . is the lack of historical precedent.” … Similarly, the Necessary and Proper Clause inquiry asks whether a challenged law is “a modest addition to a set of federal . . . statutes that have existed for many decades” or “reasonably extended [a] longstanding  system.” …Here, no historical practice of analogous federal regulation has been cited.
Needless to say, this decision affects many struggling households. Some states like New York have established eviction freezes; so have cities like New York and Seattle. But plenty of others are at risk. From CNN:
An estimated 10 million renters were behind on their rent and at risk of eviction in the middle of January, according to a Census Bureau survey. And an estimated 16 million renters had little to no confidence they could pay their rent in February.
Mind you, I am not saying that this ruling won’t be overturned on appeal. The government may file a much more cogent legal argument. But don’t let anyone tell you this decision is cray cray. Real estate and police powers, and public health is deemed to be part of police powers, have been repeatedly found to fall outside the Federal purview. I don’t see that the government made a strong case as to why not. And with the stimulus bill already having a rough go in Congress, it’s not as if the Administration could now add meaningful subsidies for renters at this late date.00 CDC Moratorium ruling