Coronavirus

Federal Court Strikes Down CDC's Controversial Eviction Ban as Unconstitutional

A nationwide ban on evictions is well outside the congressional power to regulate interstate commerce, ruled U.S. District Judge J. Campbell Barker on Thursday.

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In a surprise decision Thursday, a federal court has struck down the Centers for Disease Control and Prevention's (CDC) controversial ban on evictions as unconstitutional.

The federal government's power to regulate interstate commerce "does not include the power to impose the challenged eviction moratorium," wrote Judge J. Campbell Barker for the U.S. District Court for the Eastern District of Texas in his opinion yesterday. "Although the COVID-19 pandemic persists, so does the Constitution."

This ruling comes in response to a lawsuit brought by the Texas Public Policy Foundation (TPPF) and the Southeastern Legal Foundation on behalf of several Texas landlords who've been prevented from evicting non-paying tenants because of the CDC's order.

"My clients have continued to have the cost of their property, their property taxes, their mortgages, their costs of maintaining and upkeep," says Robert Henneke, general counsel for the TPPF. "At the same time, in the last five months, they've been prohibited by the federal government from collecting rent. That's caused them injury they can start recovering from here beginning today."

Housing advocates, who've long supported a nationwide eviction moratorium, are less pleased.

"This court decision must not stand, the federal government must vigorously defend, extend, strengthen and enforce the CDC order," said Diane Yentel, president and CEO of the National Low Income Housing Coalition. "Evictions risk lives, drive families deeper into poverty, and strain our already overstretched public health systems."

The CDC first issued its eviction ban back in September 2020. The order forbade rental property owners from evicting tenants for non-payment of rent so long as they filed a hardship declaration saying that they'd made efforts to obtain government assistance and that their eviction would result in them moving into a more crowded living situation.

Landlords who violated the eviction ban could face hundreds of thousands of dollars in fines, and even jail time.

The moratorium was originally supposed to expire on December 31. Congress extended it through the end of January when it passed its $900 billion relief package that month. President Joe Biden extended it once again through the end of March.

From the beginning, the federal government's eviction ban has been legally controversial.

The CDC has justified it by pointing to the Public Health Service Act, which says federal health officials have the power to take measures "reasonably necessary" to prevent the interstate spread of communicable disease. The law goes on to list "inspection, fumigation, disinfection, [and] sanitation" as examples of measures public health authorities can take.

The agency has argued that an eviction ban is a "reasonably necessary" means of fighting the pandemic, given that evicted tenants might spread COVID-19 to their next living situations.

Critics of the CDC's eviction ban argued this interpretation of the law would give the agency unilateral authority to issue near-limitless restrictions in the name of preventing the spread of COVID-19.

"This broad interpretation of the regulation would give the executive the power to restrict almost any type of activity. Pretty much any economic transaction or movement of people and goods could potentially spread disease in some way," wrote George Mason University law professor Ilya Somin in September.

Multiple lawsuits have been filed against the CDC's moratorium, arguing it's a clear example of executive overreach, and that Congress never gave the agency the power to impose a nationwide eviction ban.

Barker's decision on Thursday goes further than that by saying that even if Congress wanted to impose an eviction ban, it couldn't. Its powers to regulate interstate commerce can't extend to intrastate evictions, which aren't economic activity, he ruled.

"Here, the regulated activity is not the production or use of a commodity that is traded in an interstate market. Rather, the challenged order regulates property rights in buildings—specifically, whether an owner may regain possession of property from an inhabitant," wrote Barker.

Thus, if Congress doesn't have the power to ban evictions, then it follows that it can't delegate that power to the CDC or any other agency. Barker's ruling doesn't touch eviction moratoria adopted by state or local governments.

The decision is a huge blow to supporters of the CDC's eviction ban, but its practical implications are a bit unclear.

Henneke says that the moratorium is gone, telling Reason, "This is a declaration that the order is unconstitutional followed by a final judgment to that effect from the federal court so our position is that the CDC order as a matter of law does not exist."

Yentel counters that because Barker didn't issue an injunction against the CDC's eviction ban, the protections of the moratorium remain in place.

"The Court did not issue an injunction, but the government previously said that it would follow a declaration. By my read, the order is no longer in effect," says Josh Blackman, a professor of constitutional law at the South Texas College of Law in Houston and Volokh Conspiracy contributor, in an email. "What complicates the issues is that disputes would not arise between the federal government and landlords. Rather, tenants would seek to challenge an eviction by relying on the federal order."

"The situation is messy," he concludes.

The government is likely to appeal the decision too, meaning the case will go to the U.S. Court of Appeals for the 5th Circuit.

NEXT: A California Man Died After Cops Knelt on His Neck During a Mental Health Call. Then the Department Tried To Hide It.

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  1. “Critics of the CDC’s eviction ban argued this interpretation of the law would give the agency unilateral authority to issue near-limitless restrictions in the name of preventing the spread of COVID-19.”

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  2. And how many evictions have been served today?

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    2. Hopefully many. Lots of deadbeats out there.

      1. You’re the deadbeat traitor! Enjoying the freedom of a country you hate.

        Why do you hate America?

        1. Haha. But don’t you dare try to “enjoy the freedom” of controlling your own property!

          What a doosh.

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  3. “”This court decision must not stand, the federal government must vigorously defend, extend, strengthen and enforce the CDC order,’ said Diane Yentel, president and CEO of the National Low Income Housing Coalition. ‘Evictions risk lives, drive families deeper into poverty, and strain our already overstretched public health systems.'”

    In other words, landlords must be obligated to provide free housing and STFU. I’m sure she would say that she’s not really saying that, but making that claim is akin to those who say that the US should not enforce immigration laws, but they’re not for open borders.

    1. National Low Income Housing Coalition

      A nonpartisan organization, I’m sure.

      1. How do they pronounce the short version? Is it ‘Nat-lick’ or ‘Nat-leach’ or something else?

        1. “Morons”. You pronounce it exactly like “morons”.

          1. Alternately “Marxist traitors”. That works too.

            1. You have no room to be calling others traitor you America hating fascist.

              You’re the traitor!

              1. Okay, “KillAllRednecks”, did you forget your Xanax today?

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    2. I’ve sold all my rental property because I was tired of dealing with my local city government. They insist on making me responsible for the water bills of my tenants if the tenants don’t pay. They fail to see that their incompetent collection practices are the reason for the problem, and view landlords as an evil presence. Now the Feds can’t stand it so they’re getting in on the act to stop the evil investors. You know…people trying to build up our own financial resources so we won’t have to live on welfare. Government hates that.

      1. You victimized your tenants by giving them a place to live in exchange for them paying rent and meeting their other obligations as tenants. You victimized society by building your own wealth instead of the wealth of marginalized people you don’t know and have no relation to.

  4. “Although the Covid-19 pandemic persists, so does the Constitution.”

    1. Politicians are feverishly working on a cure for the 2nd one.

    2. Love that line.

      1. Still short of “nattering nabobs of negativism”

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        2. I don’t know what all those n-words are supposed to mean, but I do know that everything is so terrible and unfair. ™

  5. This is a very important ruling striking this very bad ban. The pandemic has exacerbated the chronic problem of government jumping with both feet on the scales to favor the worst and the weirdest over the, which in addition to harming those best and the brightest harms us all by corrupting economy at large. Government’s helping those too economically or mentally brittle to independently survive or even thrive has harmed all of us that are resilient enough to so do and the entire pandemic, post-pandemic, and next pandemic economies.

    Government has long been inching toward being the Handicapper General, during this pandemic both the stimulators and the openers sped up to breathless runs for the office.

    1. Edit button needed. Left out a phrase, middle sentence should read:

      The pandemic has exacerbated the chronic problem of government jumping with both feet on the scales to favor the worst and the weirdest over the best and the brightest, which in addition to harming those best and the brightest harms us all by corrupting the economy at large.

  6. A nationwide eviction moratorium, enforced by a *health* agency, was absurd from the start. Glad to see that it is finally being recognized as such.

    1. What’s absurd is how long it took for a federal court to finally recognize it. There was never any factual dispute, just a question of law.

      1. The order being challenged was issued in September. Keeping in mind that the federal government doesn’t have to even respond for 60 days after they get sued (the rest of us only get 21 days), a final ruling on the merits (as opposed to a ruling on a preliminary injunction or something) issued now is practically lightspeed for a federal court.

        Also: The federal government has officially issued notice of appeal. https://www.justice.gov/opa/press-release/file/1371731/download

        1. No federal government agency or legislative body should EVER put forth a law/rule without asserting the path to Constitutionality of the rule…. in other words, be able to defend it on demand. If they are certain of their legal foundation, why not be called on to defend it immediately? That way they don’t get the privilege of shoot first, ask questions later OR making it up as they go in response to the complaint. A lot less bullshit would happen in government without the attitude of pass it first to see if it’s Constitutional later, and only IF someone sues.

    2. A nationwide eviction moratorium enforced by *anyone* is absurd from the start.

      Sometimes you get halfway there, mr. individualist.

      Haha.

  7. Get fucked squatters.

  8. John Campbell “Cam” Barker is a judge on the United States District Court for the Eastern District of Texas. On January 23, 2018, President Donald Trump (R) nominated him to serve as an Article III federal judge on this court. The U.S. Senate confirmed Barker on May 1, 2019, by a vote of 51-47.

    Barker confirmation vote (May 1, 2019); Democrats 0-Yea, 45-Nay, Republican 51-Yea, 0-Nay.

  9. If Diane Yentel, president and CEO of the National Low Income Housing Coalition, is so concerned with saving lives, then she should put her money where her propaganda is and pay their rent rather than forcing landlords to pay it.

    Of course, she would laugh at the idea that she should shoulder the burden she so easily forces onto the shoulders of others. That would just be insane!

    1. But she is too busy saving the po-peeple to have time for a job and income and shit like that.

    2. Unfortunately her idea of paying for it would undoubtedly be taxing it out of you. That’s exactly what she wants.

  10. “This broad interpretation of the regulation would give the executive the power to restrict almost any type of activity. Pretty much any economic transaction or movement of people and goods could potentially spread disease in some way,” wrote George Mason University law professor Ilya Somin in September.

    That has always been the goal, total control.

    1. They are reaching (and expecting) for control way beyond simple economics. The only safe way to protect people is to micromanage every living thing.

  11. What the Democrats should do is pass another law giving landlords a moratorium on making mortgage payments, paying bills, etc. Why not just pass a maha moratorium; nobody has to pay anyone for everything? Yay! Everything is free!!

    1. Yup. Shit we want comes from unicorns in the back of the store and at power plants.

    2. Why not just pass a maha moratorium; nobody has to pay anyone for everything? Yay! Everything is free!!

      Universal Basic Living Wage Income! Libertarianism FTW!

  12. A decision like this would only come as a “surprise” to someone with no understanding at all of the constitution, America, or freedom in general.

    In other words, a Reason fake libertarian.

  13. My wife and I sold a rental house we had in CA two years ago.
    I can’t imagine how we would have survived a ‘rent moratorium’ or an ‘eviction moratorium.’

    I would think that this could be opposed on the ‘Takings Clause’ of the Constitution.

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  15. You would have thought that the $500/week unemployment check “bonus” payment and the two rounds of stimulus checks would have been enough to keep people paying their rents?

    What in the HELL was the point for these extra payments then? Simply to Pump Amazon stock?

  16. My wife and I have three rental properties. We collect about $3,500 a month. From this, we pay insurance, property taxes, and repairs on all three properties. What is left over we put in the bank for our children’s future.

    If any of my tenants decided to take advantage of this and not pay their rents, I would have had them out on their ass by sundown, and a paying tenant in there by morning, regardless of this neo-Marxist bullshit.

    1. The rule of law is over in America.

    2. I’d like to believe that you control your property as you say. I guess it depends on where it is.

      Here in Seattle, I believe you’d be sued and possibly worse for evicting deadbeats. No wonder rentals are so expensive here.

    3. Interesting point regarding savings/income. Especially in light of the Gamestop debacle. Can’t keep your money in a bank, can’t put it in the market, can’t invest in property. Just shut up and bake the cake.

      1. You didn’t earn that, so you don’t get to invest that or make any money on that. Someone else, who definitely didn’t earn that, deserves it more.

  17. Eviction moratorium isn’t like unemployment benefits, where applicants have to submit their work and pay history to qualify for relief. It just basically forbids landlords from evicting anyone. Technically some states set income threshold, but there seems to be no real mechanism to enforce or verify it.

    That strikes me as a violation of due process. Landlords has no recourse to take back their private property or file a challenge to the state if the tenant doesn’t meet income requirement. It would be different than the government seizing someone’s home to build a freeway but not paying him.

    The question isn’t whether the CDC can issue nationwide rent moratorium. For all intents and purposes, no one should.

  18. The Commerce Clause is one of those wonderful things judges can use to get whichever outcome they desire on a case.

    If the judge had applied the standard used in Raich and Wickard, this could have come out the other way, since this is just as much interstate commerce as those cases… ‘potentially, maybe, possibly, influencing, in some way, a market that might, maybe, involve something crossing state lines’.

    I’d prefer it to be seen as a unconstitutional taking. If the state wants to impose an eviction moratorium, they should be liable for unpaid rent, just as they’d be liable for the property under an eminent domain seizure.

    1. And to think it was originally written just to have a mediator on state-to-state commerce battles…… It’s original purpose was just to put Federal in as the judiciary of state to state cases; not some twisted and manipulated excuse to give federal power over everyone’s produce.

  19. Finally. An answer to the question I have be asking since I heard about this: “Under what authority is the CDC banning evictions?”

    Even if you think an eviction ban is a good thing…the CDC is the best way to intact one?

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