The Volokh Conspiracy

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Breaking: Federal Court Declares Unconstitutional CDC Eviction Moratorium

"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."


Back in September, I wrote about several challenges to the CDC's eviction moratorium. To date, the district courts have ruled against the Plaintiffs. Today, the U.S. District Court for the Eastern District of Texas ruled in favor of Plaintiffs. This case was brought by the Texas Public Policy Foundation.

Here is the introduction to Judge Barker's opinion:

And the government's claim of constitutional authority is broad. The government admits that nothing about its constitutional argument turns on the current pandemic:

THE COURT: [T]here's nothing special about COVID 19? Congress could do the same thing, the same temporary suspension of tenant evictions, if there was an inability to pay rent because of some other reason that Congress finds important? My example was cohabitating spouses sent to prison, but there could be others. That is your Commerce Clause argument; correct?

MS. VIGEN: That is our Commerce Clause argument, correct. Hr'g Tr. at 56:13-21.

The federal government thus claims authority to suspend residential evictions for any reason, including an agency's views on "fairness." Id. at 53:11-23. Given the open-textured nature of the relevant constitutional text, "the question of congressional power under the Commerce Clause 'is necessarily one of degree.'" United States v. Lopez, 514 U.S. 549, 566 (1995) (quoting NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37 (1937)). Reasonable minds may differ given the lack of "precise formulations." Id. at 567. But here, after analyzing the relevant precedents, 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.

The quoted DOJ lawyer had a Drew Days moment from Lopez. In that case, the Solicitor General was unable to draw a limiting principle. So the Court drew one for him. We discussed this colloquy in An Introduction to Constitutional Law.

I commend Judge Barker's analysis. He thoroughly explains the Court's current Implied Powers jurisprudence. And, he correctly observes that the substantial effects test is grounded in the Necessary and Proper Clause, and not the Commerce Clause. Most law students, and alas, many law professors, miss this point.

This case arose on a motion for summary judgment. We are not dealing with a preliminary injunction, nationwide or otherwise. Judge Barker observed that the government represented that it "would respect the declaratory judgment." But the Court explained that the "Plaintiffs may, of course, seek an injunction should defendants threaten to depart from the declaratory judgment."

Next stop, the Fifth Circuit.

Update: A reader asks why the Court decided the constitutional question, and did not consider other threshold statutory questions. Here, the Plaintiffs only brought a constitutional claim based on the commerce clause. There was no basis to decide any statutory claims.