The CDC vs. the Constitution

The Founders could not have possibly imagined the Commerce Clause covering an eviction moratorium.

Since last summer, the Centers for Disease Control and Prevention (CDC) have used an obscure federal regulation to impose a nationwide moratorium on a huge chunk of residential evictions. This is constitutionally dubious, to say the least. But the CDC just extended it through June.

The moratorium's proponents argue that federal authority over interstate commerce permits this move. But the Interstate Commerce Clause isn't a plenary power over all areas of life simply because everything, at a certain point, can be linked to commercial activity. The Tenth Amendment makes clear that all powers not expressly delegated to the federal government are left to the states. Still, the Commerce Clause has been used to justify a myriad of regulations that involve no commerce "among the several states," and in some cases no "commerce" at all. Notable examples include prohibiting cannabis grown in your backyard for personal medical use, or stopping the control of a rodent population that has no commercial value and lives only in southwest Utah.

Courts since the 1930s have often validated federal overreach under cover of the Commerce Clause. But in United States v. Lopez (1995), the U.S. Supreme Court held that gun-free school zones had nothing to do with interstate commerce. The Clause, it cautioned, does not invite a court to "pile inference upon inference in a manner that would…convert congressional authority…to a general police power of the sort retained by the states."

At the time, Lopez seemed to be a game-changer. But officials have found creative new ways to keep an impossibly broad Commerce Clause alive, and the Court has sometimes approved such schemes, as in the medical marijuana case Raich v. Gonzalez (2005). But in NFIB v. Sebelius (2012), even as Chief Justice John Roberts saved Obamacare's individual mandate, he also joined a majority of justices in holding that the Commerce Clause is not so broad as to justify forcing people to engage in a commercial activity.

The CDC eviction moratorium is especially egregious because it's not even a statute; it's an edict. Moreover, the regulation the CDC is relying on could be interpreted to permit any measures the agency "deem[s] reasonably necessary" to prevent the spread of communicable disease if it believes local responses "are insufficient to prevent the spread." Taken to an extreme, that provision could justify the regulation of every aspect of life, all to "prevent the spread" of the common cold. Although the regulation's language likely limits the agency to actions like those the rule actually lists—"inspection, fumigation, disinfection"—if it is extended to an eviction moratorium then there is no logical limit to what it could cover, essentially enabling the CDC to rule by decree. The Framers could not possibly have intended this result.

As Lopez teaches, it would take more than a few inferences to conclude that the landlord-tenant relationship is anything other than local (not interstate) activity. Those who disagree ought to heed District Judge J. Campbell Barker, who in a recent ruling against the CDC remarked that the "federal government cannot say that it has ever before invoked its power over interstate commerce to impose a residential eviction moratorium."

Meanwhile, a majority of states imposed eviction moratoriums of some kind during the pandemic, though some have lapsed. Whether or not they are wise policy, they certainly do a far better job of accounting for local economic conditions than the CDC's one-size-fits-all approach could ever do. Constitutional defects aside, the CDC rule simply isn't necessary.