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A United States District Judge in the Eastern District of Texas has held the eviction moratorium imposed by the Centers for Disease Control (CDC) as unconstitutional. In holding the moratorium unlawful, Judge J. Campbell Barker held that “[a]lthough the COVID-19 pandemic persists, so does the Constitution.”  Terkel v. Centers for Disease Control and Prevention, No. 6:20-cv-00564, Opinion and Order at p. 20 (ED Tx. Feb. 25, 2021). The Court’s Order applies only in the Eastern District of Texas unless adopted by higher courts, or if the CDC agrees to abide by the order on a nationwide basis.

By way of background, the CDC order prevented landlords on a national scale from prosecuting eviction actions to regain possession of residential rental properties. The CDC order would only forestall the eviction if the tenant submitted an affidavit attesting that the only reason they could not pay rent was because of COVID-19 impacts. There were also income thresholds to available relief and a requirement that the tenant have sought government assistance before submitting the affidavit. The effect of the CDC order has been to essentially stall residential evictions throughout the United States. The CDC order does not impact the tenants’ financial obligations, and specifically stated that rent obligations would continue to accrue. The order originally expired on December 31, 2020, but was extended until March 31, 2021 by the CDC. The CDC order has been challenged in multiple federal courts across the country as being unconstitutional.

On February 25, 2021, a federal judge in the Eastern District of Texas held the CDC order unconstitutional as exceeding the federal government’s power to regulate commerce. The landlord who brought the case, Lauren Terkel, argued that the CDC order was unlawful and unconstitutional because eviction actions are completely local in nature and not subject to federal regulation under the Commerce Clause of the United States Constitution.

The Commerce Clause states that the federal government may “regulate Commerce . . . among the several States” and to “make all Laws which shall be necessary and proper for carrying into Execution” that power.  U.S. Const. art. I, § 8. Various cases decided throughout the years interpreting this power have allowed regulation where economic activity in the “aggregate” will have a “substantial effect” on interstate commerce.

The CDC argued that basis for its power to implement the moratorium originated in the Commerce Clause, and argued that eviction activity, taken in its aggregate, has a substantial effect on interstate commerce and is a valid ground for imposing federal government regulations on evictions. The Judge noted that such a sweeping restriction has never been imposed before in the history of the country, not even during the Spanish Flu pandemic or during the Great Depression.

Especially concerning to the Court was the government’s position that the federal government could suspend evictions if there was “some other reason that Congress finds important.” The Court then rejected the government’s apparent claim that it has “authority to suspend residential evictions for any reason, including an agency’s views on ‘fairness’.” (Opinion, p. 2). The Court also rejected the other arguments made by the government based on the supposed aggregate economic effect of eviction activity, holding that evictions are not themselves economic activity and cannot be considered in the aggregate as “interstate commerce” and regulated.

Notably, however, the Court did not enter an injunction, instead noting the following: “Given [the CDC’s] representations to the court . . . it is “anticipated that [the CDC] would respect the declaratory judgment.” The CDC has the right to appeal Judge Barker’s order within 30 days (by Monday, March 29, 2021), which is two days prior to the current expiration of the CDC order.

This decision is only applicable at this time in the Eastern District of Texas.  Similar challenges have been filed in multiple other courts and are also proceeding, with two decisions in favor of the CDC on appeal in the 5th and 11th Circuits, and arguments fully briefed in the District of Columbia federal court and awaiting a decision.  It remains to be seen what impact the Terkel holding, and the CDC’s decision whether to appeal that order, will have in the other pending cases.