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."

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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.

NEXT: A New SCOTUS Workflow: Opinions during the Recess and on Non-Argument Days in February

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  1. Considering how many decisions for the government there were in previous cases, I am no optimistic about this case’s further chances. Government sure does like to expand its definition of itself under color of law.

    1. This is a misfit opinion from a 30-something Trump pick. Prof. Blackman swoons, but the mainstream — even in the backwaters of the Fifth Circuit — may be substantially less fanboyish.

      1. Wishing OBL was here to cheer for #LibertariansForSeizingControlOfRentalProperties

      2. Are you in support of this as a temporary measure for COVID? Or do you go along with the government’s argument there is no limiting principle, including some unelected regulator’s definition of “fairness”?

        The latter isn’t very libertarian of you, though it is liberal. If so, we could predict you were in favor of Kelo. Like Donald Trump.

        1. I have not thought much about it. I am confident, however, that an against-the-grain decision from a Trump-appointed judge in a backwater district is not much cause for concern (or attention) yet.

      3. Get bent.

      4. Are you still claiming to be libertarian, Artie?

        1. I am Arthur. It is nice that you remember Artie, but Artie was banned by the Volokh Conspiracy for making fun of conservatives a bit too deftly for the proprietor’s taste.

          By this blog’s standards, I am intensely libertarian. Plus, the L in Arthur L. Kirkland stands for Libertarian.

          1. The federal government banning evictions is libertarian?

  2. This action was filed in Tyler, Texas, in a 2 judge U.S. District Court. Both judges are Trump appointees. The appeal goes to the 5th Circuit, which has a 12-5 Republican majority.

    We should start there. This doesn’t mean that the arguments are bad. But if this was such an obvious principle of law, such a clear application of Lopez, you could have brought it before any judge and they would have decided it that way, right? Why go to a tiny court branch in Texas? We know why, of course.

    Look, I don’t think much has to be said about this other than it’s close to frivolous under Wickard and Raich. In the aggregate, residential leases are both economic activity and have a substantial effect on interstate commerce. That’s the ballgame. I don’t even like those cases, but they are good law and that’s the ballgame.

    And that makes this entire enterprise shameful. Have some guts. Bring this claim in the Central District of California.

    1. Well, the plaintiff was the Texas Public Policy Foundation. Would it even have standing to sue in a California federal court.

      1. That begs the question. The Pacific Legal Foundation could have filed it too (whatever the standing theory might have been). Obviously this thing was funded by movement conservativism central.

        1. Or perhaps it was funded by landlords who need the rent money in order to keep the bank from foreclosing on their property.

          And since the tenants aren’t paying rent, they need them out.

          1. The Landlords at the Texas Public Policy Foundation?

            1. Did you read the case?

              Lauren Terkel, Lufkin Creekside Apartments Ltd, and others…

            2. The Texas Public Policy Foundation is not the plaintiff, they are providing legal services to a group of landlords who are the plaintiffs.

              1. For free. Paid for by the conservative movement, which funded this litigation precisely because it would be in Tyler, Texas before this Court.

        2. Dilan,
          A) It does not “beg” the questiom. Use the phrase properly.
          B) Venue shopping works so well for the left during the last 4 years, why shouldn’t it become the modus operandi across the political spectrum.

          1. It does beg the question, in BOTH senses. Read the sentence carefully. It’s correct English.

          2. Do your damnedest. Use whatever methods you prefer and any power you have.

            Your betters will nonetheless continue to defeat you soundly in the American culture war, clingers.

        3. “The Pacific Legal Foundation could have filed it too (whatever the standing theory might have been). Obviously this thing was funded by movement conservativism central.”

          Aren’t Thurgood Marshall and Bader-Ginsburg famous for, indeed lionized for, long, patient, strategic campaigns to seek opinions gradually moving the legal Overton window in a direction they desired? Is that somehow different that what is being tried here?

          1. Those long patient strategic campaigns did not involve filing in a tiny court some where to get a specific judge to issue an opinion disobeying precedent.

            Brown v. Board of Education was filed in 5 different courts.

    2. You mean it’s shameful that they had a choice and didn’t consult you?

      Or do you mean it’s shameful they had a choice at all?

      1. I mean it’s shameful that they basically selected a judge who they felt would disregard controlling United States Supreme Court precedent, teed it up for the judge to do so, and then Prof. Blackman writes a blog post where he doesn’t even mention this key fact and treats it like it is a serious argument when in fact it’s close to frivolous.

        1. Or perhaps they just filed in in the nearest federal court…..

          1. That’s disingenuous. This is a national policy. Presumably there are potential plaintiffs all over the country. And this lawsuit was paid for by the conservative movement. It could have been filed anywhere.

            They picked these plaintiffs to file in this court, and they did it because they were filing a claim directly contrary to controlling United States Supreme Court precedent.

            1. And? They clearly met all of the jurisdictional and venue requirements.

              1. So what? The legal system permits a lot of scuzzy, dishonest conduct. We should still point it out and not celebrate it.

                1. I’m not going to get upset about something that happens every day. I’m wholly committed to the notion that plaintiffs have a liberal choice in here to file a case, so long as the court is competent to hear their claim. I’m unwilling to abandon that overarching principle just because a single court reached a single result that I don’t like. If their argument is truly as frivolous as you claim, the decision will get reversed.

                2. It’s funny what it takes to get some people to understand that national injunctions are bad.

                  1. I don’t think national injunctions are bad. I do agree with Dilan that this is a frivolous case likely to be overturned on appeal.

                  2. Just to clarify, I do not think the eviction moratorium is a good idea. But I also think the Constitution permits the government, both federal and state, to do a great many things that I consider bad ideas. And under the governing law — Raich, Wickburn — this case was wrongly decided.

                    As conservatives are so fond of reminding us, the job of a court is to tell us if the Constitution permits something, and not whether it’s a good idea.

                    1. Could it not be argued that this gives the Court an opportunity to revise previous stances on what the government is allowed to do? Wickburn is terrible. Absolutely convoluted, goal-oriented legal gymnastics that completely ignores the fundamental truths that predated and undergirds the very Constitution it sought to “uphold”… that people have rights first and that all readings of the Constitution should be read with an eye to maximize individual freedom (that was the whole point, after all).

                      If we are going to argue precedent as sacrosanct… then Korematsu is totes OK? Dredd Scott is Holy Writ now?

                    2. Yes, but lower courts are not allowed to overrule the Supreme Court. No matter how terrible a precedent may be, lower courts are required to enforce it, with the losing party then asking the Supreme Court to reconsider.

                      Dred Scott is no longer good law because there’s been an intervening constitutional amendment or two. Korematsu is technically still controlling precedent because the same issue hasn’t come up since then, so Korematsu is the Supreme Court’s latest word on the subject. If the issue did come up again — suppose Trump had declared a national emergency and ordered all Muslim Americans into camps — I think the lower courts would have been required to go along with it and leave it to the Supreme Court to overrule it.

                    3. To Krycheck_2

                      If no lower court ever bucks the trend… then the case will likely never reach SCOTUS for review… save a few rare instances of original jurisdiction.

                      Also… that means the entire judicial branch is now duty bound to enforce unjust laws… for reasons? That makes zero sense.

                    4. No, not exactly.

                      First, if a party thinks that the Supreme Court may be willing to re-examine a bad precedent, that party is free to ask the Supreme Court to overrule itself, and sometimes that actually works. There have been cases in which the Supreme Court decided its earlier decision was just wrong, and overruled it. For example, Brown v. Board of Education overruled Plessy v. Ferguson. And sometimes lower courts will even say they think the Supreme Court was wrong and ask the Supreme Court to take another look at it, while still enforcing the precedent until the Supreme Court actually does. That was Judge Reinhardt’s concurring opinion in Watkins v. Army.

                      Second, lower courts can be creative in distinguishing cases. Korematsu involved national origin, my hypothetical internment of Muslims involved religion, so the two aren’t the same. And even if the distinction is completely disingenuous, there have been times when it stirred the Supreme Court to take a look at the earlier precedent.

                      I agree that people do sometimes get screwed by bad precedents. But the alternative is to give every lower court judge in the country the authority to overrule the Supreme Court.

                    5. “Yes, but lower courts are not allowed to overrule the Supreme Court. ”

                      As Judge Reinhardt once said: “They can’t reverse them all”.

                      More goose meets gander.

                    6. Bob, if you think Reinhardt was representative of most judicial liberals you’re nuts. That said, liberals believe in judicial activism; conservatives claim not to. So the two aren’t even comparable. On one side you’ve got people adhering to their principles, and on the other side, you’ve got people trashing their principles for political convenience.

                    7. “conservatives claim not to”

                      Yes, that is why little has been conserved.

                      Tactics have to change to reflect facts and the fact is that liberal judicial activism has been wildly successful. So its time to adopt their tactics.

                      Reinhardt just said out loud what libs all think. I thank him for it.

                    8. But how do you continue to consider yourself a conservative once you’ve embraced judicial activism?

                    9. And Bob, as far as Reinhardt just saying out loud what all liberals supposedly think, you’ve repeatedly stated here that you have no principles being winning by any means necessary. So it’s probably easy for you to think that nobody else has any principles either. And that’s not true.

                      Once you’ve embraced judicial activism, a conservative you are not. Even if you claim to be doing it for conservative causes.

                  3. “And that’s not true.”

                    20,000 years of human history tells me no one has political principles that they apply in all circumstances. They just rationalize that the situation is different this time.

                    “Once you’ve embraced judicial activism, a conservative you are not.”

                    Shrug. I have no desire to “conserve” liberal policies.

                    1. No one lives up to their principles 100%, that’s human nature. But there is a difference between the person who is generally principled and occasionally has a lapse, versus the person who has no principles in the first place. And just because you happen to be of the latter category doesn’t mean the former category is no better than you are.

                      And reluctance to embrace judicial activism is not conserving liberal policies. It’s embracing the structural conservative position that judges should act with restraint. It also then puts you in a bad position to argue against judges acting with restraint merely because the other side is now the one doing it.

                    2. “person who is generally principled and occasionally has a lapse, versus the person who has no principles in the first place.”

                      The first is unknown in politics.

                      Principles are needed and great in ones personal life, in politics they are useless, that is why nobody in politics has them.

                      “And reluctance to embrace judicial activism is not conserving liberal policies. It’s embracing the structural conservative position that judges should act with restraint”

                      Its an obsolete position that merely acts to preserve left wing policies. It depended on judges being restrained, that has not been true since 1936 on the left. Time to acknowledge reality. If that means no longer being “conservative”, so be it.

            2. Presumably there are potential plaintiffs all over the country.

              But there are plaintiffs in Lufkin, Texas as well. And thus, these plaintiffs hired attorneys who filed the case in the nearest appropriate court.

              Furthermore, I’m not aware of any “controlling United States Supreme Court precedent” in regards to this exact situation.

              1. “And thus, these plaintiffs hired attorneys who filed the case in the nearest appropriate court.” I mean, probably not. Both in the “paying” sense of “hiring” and then “plaintiffs found lawyers” and not the other way around sense.

              2. “And thus, these plaintiffs hired attorneys who filed the case in the nearest appropriate court. ”

                LOL Its ok to admit reality.

            3. As opposed to filing an immigration case — in Hawaii.
              Lots of folks sneaking across the border there…

            4. Dilan, it actually was “filed anywhere.” This is just one of a number of identical challenges filed.

        2. I see. Yes, you are disgusted they did not consult you beforehand to arrive at the proper conclusion.

    3. Why go to a tiny court branch in Texas? We know why, of course.

      Because the Plaintiffs are from Lufkin Texas? And because Tyler, Texas is just an hour away, and may be the nearest federal court?

      1. C’mon AL, we all know it is forum shopping, the mirror image of the Hawaii cases under Trump.

        Its ok, its not illegal or immoral to pick the best ground to fight.

    4. Why would they file anywhere else? In Texas, you’re likely to get a favorable ruling, potentially cause a circuit split, and maybe force SCOTUS to take up one of these cases. You like your chances at winning at SCOTUS on Lopez grounds. And you hope that maybe you can chip away at some of the post-1937 commerce clause doctrine as well. Five of the Lopez/Raich justices are off the Court. The Court has shifted quite a bit to the right in the intervening time. This is just good impact litigation strategy.

      1. I don’t deny it is good strategy. But if that’s what’s going on, maybe Josh Blackman should do a post about how it is good impact litigation strategy rather than one that pretends this is a well reasoned and correct opinion.

        1. I’d also point out that the attorneys had an ethical obligation to do right by their client. So from an ethical standpoint, they should have filed in the court most likely to give them the result they wanted.

          1. Perhaps this is the one that will precipitate enlargement of the Supreme Court (and of the Fifth Circuit). That would be great.

            Carry on, clingers.

            1. Getting burned and spending 40 years to slowly gain control of the SC, playing your exact same long game, and you want to change the rules.

              At least you admit its about the power, as you whistle past the graveyard of dictatorship the constitution is trying to forestall, by limiting government’s self-growth without amendment.

              1. Diminishing our system’s structural amplification of yahoo votes is a sound and moral endeavor.

                I recognize that our vestigial bigots and other disaffected clingers are likely to disagree.

        2. So it is NOT well reasoned to say “Because we are a limited Constitutional Republic… the government position of unlimited authority must therefore be in error”? That seems like a logical necessity to me… that if government power is limited then it can not be unlimited.

          1. You have to do what the Supreme Court says, not what conservative legal talking points say.

        3. I’m curious. Can you link to your blog post on this issue?

    5. Wickard and Raich should be overturned.

      1. I agree that Raich should be overturned.

        The biggest problem with Wickard is subsequent courts have grossly misinterpreted its holding. See O’Conner’s dissent in Raich v Gonzales.

        Wickard involved the growing of wheat for use in the commercial dairy operation, which the commerce clause should be able to reach those commercial operations. The subsequent courts have wrongly interpreted the holding to include the wheat grown for personal use.

        1. I’d disagree. Even a commercial dairy is just intrastate commerce, except to the extent it’s shipping milk to another state.

          You’re on a slippery slope, you have to drive those pitons in and refuse to slide: It’s the interstate commerce itself Congress can regulate. If I run a dairy in Wisconsin, and sell milk in Wisconsin, that’s not interstate commerce, even if somebody is doing the same in a neighboring state.

          Once you give up that principle, you end up where we are today, inevitably.

          1. Brett –

            The first problem in interpreting Wickard is that it is poorly written and therefore hard to discern the actual holding.

            Unfortunately, the courts have interpreted wickard to apply to products used for purely personal use.

            I agree with your assessment that the commerce clause should only apply to interstate commerce, not intrastate commerce since that is how the commerce clause is written.

            Assuming argumento, that wickard was correctly decided with respect to the wheat grown for the commercial dairy operation, the courts have grossly misinterpreted the holding to apply to the wheat grown for personal consumption.

        2. The commerce clause just meant that there would be free trade between the states.

    6. “We should start there.”

      No. You should start with the arguments, not the politics.

    7. “This action was filed in Tyler, Texas, in a 2 judge U.S. District Court. Both judges are Trump appointees. The appeal goes to the 5th Circuit, which has a 12-5 Republican majority.”

      Goose meets gander. This is the reverse of the San Fran and Hawaii forum shopping.

      As predicted, this will be a very active court for suing Biden. DOJ should look into renting an apartment for litigators from DC.

      1. That interest in backwater Texas litigation may diminish after Democrats enlarge the Supreme Court, add two or three new states (four or six new senators), eliminate the filibuster, and criminalize voter suppression.

  3. Just part of the Covid destruction plan. Promise the people protection, then take it away. Toss the goy on the street because they could not work in their non-essential businesses shuttered by the application of political science applied to a bad flu season. Follow the jews.

    1. Am Chai Yisrael!

  4. Excellent.

    The moratorium was one of the worst, most ignorant policies ever enacted by the federal government. It basically did not benefit either tenants or landlords. For tenants it merely postponed eviction, since tenants would have accumulated so much back rent there was no hope of them every being able to catch up. They will be homeless with ruined credit. For landlords it simply took their funds, and violated agreements both parties had signed in good faith.

    Had government really wanted to help it would have subsided, say one third of the rent and required tenants to pay one third and landlords to waive one third. This would have mean a sacrifice by all parties, and left tenants in position to start paying full rent as the economy recovered.

    To paraphrase a more noted commentator, eviction moratorium was worse than being illegal, it was a mistake.

    1. “Had government really wanted to help it would have subsided, say one third of the rent and required tenants to pay one third and landlords to waive one third. ”

      In much the same way we subsidize food for the poor by forcing stores to sell it at a loss?

      1. Going to need a source there, Chief.

        1. Source on what exactly?

          If you force landlords to “waive” one third of their rent, many will be renting at a loss. Most landlords use the rent to pay things like the mortgage, taxes, repairs and more. “Waiving” 1/3rd of the rent will mean they will be losing money on the property.

          1. Exactly.

            There’s precedent for the government helping people out by giving people money, subsidizing some expense they have. Food stamps, for instance.

            What’s the precedent for the government helping people out by ordering businesses to sell things to them below cost? Or just stop charging, while the debt nominally piles up, everybody understanding it’s never going to be paid?

            Where does Sydney get the idea that the government is somehow entitled to require landlords to eat half of the cost of a welfare program?

          2. There was only one sentence Brett wrote. Learn to read.

            1. I was being sarcastic in that one sentence, Jason. Armchair picked up on that.

              1. Let’s see if this makes sense, even to the commentators.

                The eviction moratorium takes away landlord income for more than a year, leaves the tenant bankrupt and then the landlord has to pay a lawyer to evict the tenant who cannot pay any of the back rent.

                Or

                The program I outlined gives the landlords 2/3 of their income, keeps the tenant in place, saves the cost of an eviction, keeps the tenants solvent so they can start paying full rent and 2.3 income ought to be enough to keep the landlord solvent, and maybe even make a few bucks.

                But who wants that outcome when you could have insolvency for both the tenant and the landlord?

  5. The limiting principle is straightforward: the moratorium is a regulation of economic activity that substantially affects interstate commerce. Regulations of non-economic activity that are not needed in support of a regulation of interstate commerce would still be beyond the reach of Congress (Raich). Judge Barker’s conclusion the moratorium doesn’t regulate economic activity is not persuasive.

    1. A bridge too far. It is an economic enterprise involving a small apartment building, entirely located in a single state. It is not a good that can be transferred over state lines.

      1. That’s not the test for whether something has a substantial effect on interstate commerce. Under Wickard, you aggregate.

        And does the entire interstate market for rental housing have a substantial effect on interstate commerce. Why yes, it does.

        1. The aggregate effects test is not as straightforward as you seem to believe. In Wickard and Raich, you were dealing with movable goods that could move across state lines. Real property clearly can’t move across state lines.

          I suppose you could argue that dollars spent on housing in one state could be spent on housing in another state. But that argument has no limiting principle.

          Any argument about the impact of housing in one location impacting the interstate market in housing also has to deal with the massive disparity in home prices and rental rates in different places throughout the same MSA or same state, let alone the country as a whole.

          TL;DR: The facts are very different that in Wickard and Raich.

          1. Note that I haven’t read the opinion yet. Just my impression based on the facts presented in this article and a distinction that needs to be considered in the aggregate effects analysis.

            1. The opinion didn’t rely on the aggregate effects doctrine. It instead claimed the moratorium wasn’t a regulation of economic activity:

              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. […] eviction is fundamentally the vindication of the property owner’s possessory interest.

              . That would be the correct analysis if instead Congress prohibited landlords from including no-pet clauses in leases (see, a limiting principle). But, Judge Baker’s conclusion that eviction is about the property owner’s possessory interest rather than economics is weak sauce.

          2. The aggregate effects test is not as straightforward as you seem to believe. In Wickard and Raich, you were dealing with movable goods that could move across state lines. Real property clearly can’t move across state lines.

            This is not how legal reasoning works. Wickard and Raich do not say anything about “movable goods”. Their holdings are not in any way based on whether the goods are “movable”. Their analysis is not in any way tied to goods being “movable”.

            You can’t just make up a distinction that has nothing to do with the holding of a case (“it’s distinguishable! in that case the lawyers wore BLUE ties!”) and say that means it doesn’t apply. Especially not when it’s US SUPREME COURT AUTHORITY and sets forth a broad, general rule.

            1. Umm, that’s exactly what competent representation is about. A good lawyer distinguishes the facts of the present case from the facts of the prior case and attempts to narrow the precedent based on the difference in facts. Happens all the time.

              1. No, that isn’t merely competent litigation. In actuality, this sort of conduct can get you sanctioned if the judge weren’t selected to avoid that.

                You try arguing before a judge who isn’t an ideologue that Wickard and Raich are distinguishable from this case, and see where it gets you.

              2. But, to the actual point, real property can’t move in interstate commerce. A house in one state cannot be bought in another state. This is just the nature of real property. Given that, it’s a much tougher sell to claim that you have a substantial effect on the interstate housing market than you do with personal property. Or, hell, that there’s enough an interstate market in real property in the first place.

            2. “Wickard and Raich do not say anything about “movable goods”

              Actually, Wickard goes into it in great depth. It goes into the nature of the wheat market, and how it was both a national and global market. For example

              “The parties have stipulated a summary of the economics of the wheat industry. Commerce among the states in wheat is large and important. Although wheat is raised in every state but one, production in most states is not equal to consumption. Sixteen states, on average, have had a surplus of wheat above their own requirements for feed, seed, and food. Thirty-two states and the District of Columbia, where production has been below consumption, have looked to these surplus-producing states for their supply, as well as for wheat for export and carry-over.”

              The market in HOUSING is very different. By its very nature, housing cannot move over state lines. Excess housing in Texas cannot realistically bring down housing prices in New York. The housing markets are local, by nature, and cannot be national.

              1. It’s a stretch to claim stopping evictions for COVID is related to even the fascade of affecting prices. End even if it did, that’s not why they’re doing this, COVID is.

              2. To nitpick slightly, the housing market in some metro areas does cross state lines – the New York metro area, or the DC metro area which covers three states and a federal territory.

              3. None of that says that the reason for Wickard’s rule is that the goods are movable.

        2. Wickard involved goods that could be transferred across state lines. By producing more corn in one state, like Indiana it could be shipped to another state, like New York, and lower prices.

          This is a “good” that cannot be transferred across state lines. Having another apartment in Texas does not mean it can be shipped to New York and lower the prices of New York City apartments.

          1. Per Raich, there is no requirement there be a good that moves in interstate commerce. To the contrary, all that is required is

            Our case law firmly establishes Congress’ power to regulate purely local activities that are part of an economic “class of activities” that have a substantial effect on interstate commerce. […] When Congress decides that the ‘total incidence’ of a practice poses a threat to a national market, it may regulate the entire class.

            1. Raich was about marijuana. And that was a “good” that could moved by interstate commerce. In fact, there’s a direct analog between that and Wickard, where marijuana or wheat, respectively, could be moved across state lines.

              “Even respondents acknowledge the existence of an illicit market in marijuana; indeed, Raich has personally participated in that market, and Monson expresses a willingness to do so in the future. More concretely, one concern prompting inclusion of wheat grown for home consumption in the 1938 Act was that rising market prices could draw such wheat into the interstate market, resulting in lower market prices. Wickard, 317 U.S., at 128. The parallel concern making it appropriate to include marijuana grown for home consumption in the CSA is the likelihood that the high demand in the interstate market will draw such marijuana into that market. While the diversion of homegrown wheat tended to frustrate the federal interest in stabilizing prices by regulating the volume of commercial transactions in the interstate market, the diversion of homegrown marijuana tends to frustrate the federal interest in eliminating commercial transactions in the interstate market in their entirety. In both cases, the regulation is squarely within Congress’ commerce power because production of the commodity meant for home consumption, be it wheat or marijuana, has a substantial effect on supply and demand in the national market for that commodity.”

              Here, the “good” cannot be transported across state lines. From the decision

              “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—spe-
              cifically, whether an owner may regain possession of prop-
              erty from an inhabitant.”

              1. That’s Judge Baker’s rationale for why eviction isn’t an economic activity. If he were correct in that conclusion, the rest of his opinion is consistent with precedent. I find that conclusion to be somewhere between highly unpersuasive and absurd.

                1. Even if eviction in the context of this law was purely an economic activity, it would be an economic activity that is limited to within a state’s boundries, by the very nature of the economic activity.

                  There’s no national market. Rental properties, unlike wheat or marijuana, can’t cross state lines. The Constitution gives Congress the right to regulate interstate commerce…not intrastate commerce. And by their very nature, rental properties are intrastate commerce.

                  1. Repeating from Raich:

                    When Congress decides that the ‘total incidence’ of a practice poses a threat to a national market, it may regulate the entire class.

                    Thus, the courts apply rational-basis review on whether a regulation of a purely local economic activity affects an interstate market.

                    1. You seem to be repeatedly missing the point. There ISN’T a national market in relation to rental properties. There ISN’T an interstate market. You need to actually HAVE an interstate market in order to affect it.

                      Within Wickard (Raich is applicable as well, as an agricultural good), if you grow excess wheat, that means you aren’t buying it from the interstate market, which affects the prices.

                      But within the current example, rental properties are not an interstate market. If prices for rental properties in Texas go up, you cannot get more rental properties from Iowa transported in, in order to lower the price. The physics doesn’t work. You can’t decrease the price of 1 BR apartments in New York by increasing the supply of 1BR apartments in Toledo. There’s no interstate market in rental properties.

                    2. I am just as persuaded by the conclusion “there isn’t an interstate market” in rental properties (the rental markets in bordering states are linked) as I am by Judge Barker’s conclusion that the moratorium isn’t a regulation of economic activity.

                  2. Armchair: There’s no national market.

                    Somin needs to hear about that. He can edit his book on foot voting.

                    In the residential market, you can go online and find all sorts of comparative data about the cost and availability of rental housing. Very fine-grained stuff, including specific rentals in practically any small town in the nation. Some of the sites are obviously and explicitly addressed to would-be tenants contemplating interstate moves, with freedom to choose among states.

                    Is there something I am supposed to understand about your argument that you have yet to explain?

                    1. That’s right Steven. Because the rental properties are inherently LOCAL and non-interchangable. That’s why the prices are very different in many of the different locals areas.

                      The wheat market (under Wickard) is national (or international). Wheat travels easily. You don’t need an independent site to track the price of wheat in Toledo versus Chicago versus Houston. Because, largely speaking, the price of wheat is the same in all these areas. Any excess wheat in one area is transported to the other area. This is why Wickard was applicable. Excess production, even if used locally, meant that people weren’t buying from the national wheat market, thus affecting prices. If you were to produce another million bushels of wheat in Iowa, it would drive down wheat prices in NYC

                      By contrast, the rental market is local, not national. If you were to build a hundred thousand new 1 BR apartments in Des Moines, there would be zero first order effects on the price of 1 BR apartments in NYC. You can’t pack up the 1 BR apartments and ship them to NYC, in order to lower the price there.

                    2. You can’t pack up the 1 BR apartments and ship them to NYC, in order to lower the price there.

                      Why is this hard for you? You can attract thousands of New Yorkers to living situations elsewhere, and diminish the New York demand that way. And anything is possible, if it happens. The apartments are interchangeable, if renters decide to interchange them. And they do.

                    3. Stephen,

                      They are not interchangable. There are extremely few New Yorkers that will say a 1 Br apartment in Des Moines is just like a 1 Br apartment in NYC.

                      What you’re talking about is people themselves moving from one local market place, to a different market place. Which is very very different.

                    4. “Why is this hard for you? You can attract thousands of New Yorkers to living situations elsewhere, and diminish the New York demand that way. And anything is possible, if it happens. ”

                      No, we understand that. It just ‘proves’ too much, in that it renders EVERYTHING subject to regulation as interstate commerce. (Yes, that’s your goal, we understand that.)

                    5. Brett, somewhere recently I asked you, “What is the limiting principle on judges being empowered to demand limiting principles?” You didn’t answer.

                      I think that question applies again here. What do you mean, “It proves too much?” If it is demonstrably interstate commerce, and lots of other practices are like it, then maybe they are all interstate commerce. So what?

        3. Wickard is the worst Supreme Court decision that hasn’t been overturned. We’ve suffered it for 80 years, that’s more than enough.

        4. Dilan is getting a little unhinged.

    2. “substantially affects interstate commerce”

      The original sin of interstate commerce clause jurisprudence. Treating the power to regulate interstate commerce as a grant of power to regulate anything that affects interstate commerce.

      What doesn’t? It erases the qualifications on the power.

      1. Agreed. Hopefully this leads to a circuit split and forces the court to reconsider the aggregate effects test. Though I would expect a much narrower ruling if they decided to uphold the E.D.Tex decision.

      2. As professor Blackman pointed out, it is the Necessary and Proper clause that permits Congress to regulate economic activity that effects interstate commerce. And note, “economic activity” isn’t just “anything.”

        1. That is not what N&P analysis says, or what either Blackman or the opinion said, even if we correct your mistake of word choice. From the court’s opinion: “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.”

          1. Of course Judge Barker concluded the eviction moratorium doesn’t fall within the N&P power because he said the moratorium isn’t a regulation of economic activity. But, Congress’s ability to regulate purely local economic activity that substantially affects interstate commerce derives from the N&P clause (contrary to what Brett said; his comment wasn’t about this specific case).

      3. Judge Barker actually made me think of Wickard as more defensible by the way he distinguished it from this case. (Not sure that’s a good thing, but he really brought out the problems with looking at the CC in isolation)

        1. I don’t think Judge Barker did what you claimed he did. He distinguished this case from Wickard

          Because evictions are not themselves economic activity, their effects cannot be aggregated under the Wickard principle.

      4. Brett, serious question: What is the limiting principle on the notion that judges get to demand limiting principles?

        Another way to put it. How do you tell the plenary powers in the Constitution from the others?

        Another way to put it. Does limitation of powers work by designating which powers Congress has, or does it work by assuming a court power to subtract from all of them, whatever they are?

        1. Setting aside that I didn’t say anything about limiting principles?

          “Does limitation of powers work by designating which powers Congress has, or does it work by assuming a court power to subtract from all of them, whatever they are?”

          The former, expressly: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”

          If a power isn’t delegated to the United states by the Constitution, it doesn’t have it.

          The interstate commerce clause delegated to Congress the power “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” where “among” was understood quite clearly to mean “between”.

          What it didn’t delegate to Congress was the power to regulate commerce within these entities, or all things that might ‘affect’ commerce between them.

          The power to regulate commerce within those entities was a deliberate omission, as was the power to regulate things that weren’t commerce in the first place. Modern interstate commerce clause jurisprudence is, intentionally, designed to give Congress these powers the Constitution deliberately denied them.

          1. I see. So the Constitution deliberately denied people freedom to move between states in search of cheaper rent?

            1. How’s that follow? I don’t see your logic.

            2. No Stephen,

              What it means is using the interstate commerce clause is a bridge too far, if you need to bring in people moving their physical residence, and the second order economic effects, in order to justify it.

              By that rationale, everything can be justified under interstate commerce. Any possible rationale that could cause people to potentially move can be justified by interstate commerce clause. The police are stricter in one state….it causes people to move. That allows the feds to regulate police. Marriage laws in this other state are different, which cause people to move. Now the feds can regulate marriage.

              Using the fact that people move in response to different stimuli, and that that has an economic effect is too far from the true nexus of interstate commerce to be used to justify regulations.

              1. “By that rationale, everything can be justified under interstate commerce. Any possible rationale that could cause people to otentially move can be justified by interstate commerce clause. ”

                I concur – This goes back to the liberals argument that congress can compel commerce under the commerce clause –

              2. Congress is not permitted to regulate police or marriage because they would not be regulations of economic activity. It is clear you don’t like the precedent, but “economic activity” is the dividing line (*) from Raich.

                (*) Congress can also regulate non-economic activity that is essential to a larger regulation of interstate commerce (e.g., proscribing possession of marijuana in support of the prohibition on the interstate marijuana market).

          2. I guess I should elaborate a little.

            When I say that the power is to regulate actual commerce, across the actual specified borders, this doesn’t mean that the N&P clause doesn’t extend this a little. If otherwise fungible products are being shipped about, you might see a regulation requiring state of origin labeling, to enable compliance to be confirmed.

            But that doesn’t get you to regulating somebody manufacturing and selling widgets within a single state, just because doing so reduced importation of that widget from a second state. It’s pretty clear you’re not doing that to regulate the importation, you’re doing it to regulate the intrastate manufacture.

            At some point the courts have to recognize the difference between enabling regulation of actual interstate commerce, and using effects on interstate commerce as an excuse to regulate things that aren’t interstate commerce.

            They crossed that line in Wickard, because the intent wasn’t to regulate the shipping of grain between states, it was to control the prices within states.

  6. More unconstitutional overreach from the Trump administration. Good to see the regulation overturned, and by a Trump appointee, no less.

    1. The MSM should get on this.

      “Trump’s evil legacy: Violation of the property rights of landlords, stretching the Commerce Clause beyond its normal contours, infringing the powers of the states.”

      Hmmm…maybe they won’t take that angle after all.

      1. OK, here we go:

        “Trump judge forces poor tenants out into the streets during a pandemic.

        “This is what Republicans do when they’re not electorally accountable, experts claim.”

  7. Cases like this are interesting and bring up the question as to why it is not valid under the constitution to have an eviction moratorium, but just peachy to make it illegal to grow pot for personal consumption. Both should be ok or both should be unconstitutional.

    1. To be clear, we’re talking federal authority here, right?

      The law against growing pot would be constitutional at a state level, but not the federal.

      The moratorium would be unconstitutional at both levels, as an uncompensated taking.

  8. I agree that the best reading of current precedent would go the other way. But it’s been more than a decade and a change of several justices since Raich v. Ashcroft. And the Supreme Court has occaissionally found things ourside the Commerce Clause power in recent years, most notably finding that the Obamacare mandate was outside it in the Sevellius case. It’s always possible the current crop of Justices will put together Lopez, Sebellius, and other cases into something regarded as a general principle rather than a set of occassional exceptions, and give Raich a narrowing interpretation.

    I agree there’s no ethical problem with the plaintiffs suing in a Tylor Texas court. As landlords who haven’t been paid and who have bills, they have clearly lost money as a result of the policy. They have an unquestionable, indeed very traditional, personal stake in the case and clear standing to sue. They have every right to do so.

    I also agree that in light of the occassional cases where the Court has found Congress exceeded its commerce clause powers, and the fact it has never decided this particular issue before, the plaintiff’s case here can’t be regarded as frivolous. There’s nothing unethical about the lawyers bringing it.

    Whether the plaintiffs will ultimately win after the inevitable appeal remains to be seen.

  9. One reality that seems to be being ignored is in a state like Texas the real estate rental market in Tyler, Texas has no affect on the real estate rental market in Houston, or any other big city in Texas. It is a fool’s errant to try and maintain the real estate rental market in Lufkin, Texas (an hours drive from Tyler, Texas) affects the real estate rental market in Houston and absurd to claim it affects the real estate rental market out side of Texas.

    If the case was filed in Ft. Worth I could buy the claim that the Dallas real estate rental market might be affected. Plenty of peeps work in NYC and live across the river in NJ so a case filed there would support the claim of inter state commerce being affected.

    Point is a one size fits all decision means either Podunk USA or Gotham USA will likely get the short end of the stick.

    1. rarebit, this from MA suggests otherwise:

      “Lufkin, TX Houses for Rent – 27 Houses | Rent.com®”

      1. I like the autocorrect to, “rarebit,” but I meant “ragebot.”

      2. I think you can become very rich by exploiting the opportunity you have uncovered – buy 2500 sq ft houses in Omaha for $250k, and sell them in Palo Alto for $2.5M. Easy money, apparently!

        1. Unfortunately, these houses are only for rent — you will have to return the houses, and the land underneath, to Omaha at the end of the rental period.

          1. Fair enough! Although it’s probably cheaper to see where they are rented next – no sense moving it back to Omaha if the next rental is in Jackson Hole.

        2. Absaroka, your explanation for why interstate movement necessary to invoke the commerce clause cannot be movement of tenants instead of movement of houses?

          1. What kind of regulation of tenants are you proposing?

            Hypothetically, perhaps, a rule that any tenant who stiffs a landlord in state A is forbidden from renting in other states until they make restitution to the original landlord? I dunno, seems like a stretch to me.

          2. Because travel is one of the Privileges and Immunities guaranteed by the 14th amendment, so you can’t really regulate the movement of the tenants.

            And if “Somebody might move from state A to state B, and then buy the product!” is enough to make a product interstate commerce, then there’s nothing BUT interstate commerce.

          3. Because the commerce clause does regulate the movement of people.

      3. Are you surprised that there is an interstate market for Internet advertisements?

  10. “We want to do a good thing, so we’re gonna lie about why we have the power to do it. At a national level instead of state because, I forget why that’s so important.”

    Why can’t people be honest?

  11. A) what constitutional authority authorized the CDC , An executive branch agency, to issue the moratorium?

    B) Is the moratorium not a taking under the 5th requiring compensation

    1. B) is the item I continually wonder about. Where are the lawsuits saying “this is a 5th Amd. taking, the gov’t is on the hook for the rent the non-paying, would-be-evicted-but-for-ban tenant should be responsible for”?

      Is the illusion that the tenant is nominally still liable enough of a fiction to convince courts there’s no 5th Amd. taking? Something else?

      1. I think that’s it, actually: That sort of fiction is common enough that they didn’t even bother trying that tack. Regulatory taking cases are incredibly hard to win, and this one would be doubly hard due to that fiction.

      2. Because the moratorium only stays the eviction, not the money owed by the renter. So while the ‘effect’ of it could mean a taking because the landlords would lose their property to a bank (due to foreclosure) it isn’t directly ‘the government’ taking, and the money is still owed. Thus with twisty logical fun it’s ‘technically’ not a taking, even if it has the same effect as a taking.

        1. Have you ever tried to collect rent from a deliquent tenant.

          collections for past due rent typically are less than 20%.

    2. According to https://www.cdc.gov/coronavirus/2019-ncov/downloads/eviction-moratoria-order-faqs.pdf (search for “What is CDC’s legal authority for issuing this Order?”):

      “Under 42 U.S.C. § 264, the HHS Secretary is authorized to take measures to prevent the entry and spread of communicable diseases from foreign countries into the United States and between U.S. states and U.S. territories.”

      “CDC issued this Order because evictions threaten to increase the spread of COVID-19. During a pandemic, calling a temporary halt to evictions can be an effective public health measure to prevent the spread of disease.”

      So… Are they allowed to do *anything* that might tend to reduce interstate spread of disease?

  12. Why isn’t this a contract clause case? Landlord and tenant have a contract that says if X, Y, or Z happens, landlord may evict tenant. Federal government says NOPE, that’s void. ?

    1. Because the contracts clause is a limitation on the power of the states, not the federal government.

  13. What I thought was most astonishing about this opinion is that it accepted the invitation of both parties to go straight to the constitutionial issues without first addressing whether there were nonconstitutional grounds for the plaintiffs to obtain relief. What provision of the statute authorizes the CDC to make the essentially economic decision of which party bears the economic risk and burden of leaving tenants in situ when they cannot pay the rent? What regulations allocate that authority to the CDC?

    And it is surprising to see Josh Blackman praise a trial judge for making a huge constitutional ruling without considering those issues first

    1. The advantage is that Congress is considering the same moratorium. So if it was purely based on the CDC’s authority, the issue would be back without a ruling on the Constitutional issue.

  14. What I find amusing is the complaining of ‘venue shopping’ and ‘Trump appointee’ when they lost this one. But they’re all happy to shop around and never mention the same when the tables are in their favor.

    The hypocrisy abounds!

    1. its not hypocrisy – when done by progressives.
      If it werent for double standards, progressives would have no standards.

    2. If liberals filed a case in a 2 judge court where both judges were Obama appointees and got a decision contrary to Supreme Court precedent, I certainly would complain.

      For instance, I criticized Judge Henderson’s ruling (later reversed by the Ninth Circuit) in the Prop. 209 case a couple of decades back. That was forum shopped.

  15. So the CDC will respect the decision and not prosecute renters who try to evict people. Meanwhile, a thousand judges in a thousand local courts hearing landlord-tenant cases are not bound by this decision. The federal government is not a party to those cases.

    1. I take that back. The government does not respect the decision. One government lawyer in Texas does. The US Attorney for Massachusetts put out a press release today reminding landlords that evicting a tenant making under $99,000 per year (twice that for married couples) is punishable by a year in jail and a $250,000 fine. https://www.justice.gov/usao-ma/pr/us-attorney-s-office-reminds-public-cdc-eviction-moratorium-order

      I doubt any Massachusetts landlords are plaintiffs in the Texas case.

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