Federal Judge Axes CDC Ban On Evictions: Constitution ‘Persists’ Despite Pandemic

A federal judge in Texas blocked a Centers for Disease Control and Prevention (CDC) mandate that restricted landlords from evicting residents.

U.S. District Judge J. Campbell Barker ruled Thursday that the CDC order, first enacted by the Trump administration in September, is unconstitutional. Barker said that the order, unprecedented in U.S. history, fell outside the Constitution’s Article I powers granted to the federal government.

“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,” Barker wrote in his 21-page opinion. “The federal government has not claimed such a power at any point during our Nation’s history until last year.”

“And the government’s claim of constitutional authority is broad. The government admits that nothing about its constitutional argument turns on the current pandemic,” he continued. “The court concludes that the federal government’s Article I power to regulate interstate commerce and enact laws necessary and proper to that end does not include the power to impose the challenged eviction moratorium.”

“Because the remaining plaintiffs are entitled to judgment as a matter of law, the court enters summary judgment granting declaratory relief in their favor. Although the COVID-19 pandemic persists, so does the Constitution,” Barker concluded.

Former President Donald Trump put the moratorium in place in September to expire at the end of last year. In December, Congress passed legislation extending the moratorium to the end of January. On his first day in office, President Joe Biden signed an executive order again extending the moratorium through March 31, 2021.

The rule generally barred landlords from evicting a tenant who could not pay rent and could not get access to public housing or assistance. The lawsuit that resulted in Barker’s opinion was brought by a group of landlords and property managers in Texas seeking to serve eviction notices to some of their tenants. Representatives of the Texas Public Policy Foundation and the Southeastern Legal Foundation, both legal groups representing the landowners in the case, hailed the decision.

“The court’s order today holding the CDC’s interference with private property rights under the veil of COVID-19 serves as notice to the Biden administration that the Constitution limits government power,” Southeastern Legal Foundation attorney Kimberly Hermann said, according to The Hill.

“The CDC attempted to use Covid-19 as an opportunity to grab power and the court rightfully corrected this egregious overreach,” Texas Public Policy Foundation General Counsel Robert Henneke said, according to Bloomberg. “This case puts down a marker.”

The case is expected to be appealed to the Fifth Circuit. In December, estimates predicted that because of the COVID-19 pandemic and heavy-handed state lockdowns, tens of millions of renters could be evicted from their rentals should the moratorium lapse. As The Daily Wire reported at the time:

On December 31st, a nationwide CDC order covering states and localities without eviction bans will expire. Similar policies in New York, Oregon, Virginia, and Washington state are also scheduled to lapse at the end of this year, while California’s version remains in effect until February 1.

Meanwhile, millions of renters remain unemployed and still owe thousands in back rent and late fees. The uncertainty about whether rent will be paid has resulted in both tenants and individual landlords relying on credit cards, emergency funds, and family and friends to get by. Stout, a global investment bank and advisory firm, estimates up to 8.4 million renter households (20.1 individual renters) “could experience an eviction filing” by January, with projections showing up to $34 billion in funds owed by renters to property owners.

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