Federal court rules CDC eviction moratorium unconstitutional

BY Harry J. Kelly

On Thursday, February 25, 2021, a U.S. district court judge in Texas issued an opinion holding that the eviction moratorium issued by the Centers for Disease Control and Prevention (CDC), which was recently extended to March 31, 2021, is unconstitutional. Terkel v. Centers for Disease Control and Prevention, Case No, 6:20-cv-00564 (E.D. Tex. Feb. 25, 2021)(slip op.). As you may recall, the CARES Act imposed a federal-level eviction moratorium that continued in effect until July 2020. After the lapse of the original CARES Act moratorium, the CDC issued a follow-up eviction moratorium on the grounds that evictions would lead to families moving into shelter housing or co-habitating with other families, which would tend to spread the virus, and that it could impose an eviction moratorium under its authority to prevent the spread of communicable diseases across state lines. 85 Fed. Reg. 55292 (Sept. 4, 2020). The most-recent COVID-19 relief bill extended that moratorium to December 31, 2020, and the CDC recently further extended the moratorium to March 31, 2021.

Not so fast, said the Texas judge. While acknowledging that eviction moratoriums may be lawful as part of state laws managing eviction procedures generally and under states’ broad “police powers” to promote “the lives, health, morals, comfort and general welfare” of their citizens, slip op. at 1 (citations omitted), these eviction moratoriums reflect a significant expansion of federal power:

The federal government cannot say that it has ever before invoked its power over interstate commerce to impose a residential eviction moratorium. It did not do so during the deadly Spanish Flu pandemic. Nor did it invoke such a power during the exigencies of the Great Depression. The federal government has not claimed such a power at any point during our Nation's history until last year. Slip op. at 2 (citations omitted).

The court engaged in a detail analysis of Congress’s power under the Commerce Clause to regulate interstate commerce, as well as other constitutional provisions, and concluded that the moratoriums exceeded the government’s authority.

The broad scope of the opinion suggests that any federal eviction moratorium is unlikely to pass muster under the Commerce Clause, in part because the decision to evict a tenant is not, in the court’s view, an “economic” act within Congress’s power to regulate. An argument could be made that the Texas judge gave short shrift to the other grounds cited in support of the CDC moratorium — for example, that a massive wave of evictions could drive up infections and result in further destabilizing of the economy. Possibly, with additional factual findings about the economic impact of a wave of evictions, Congress could provide sufficient evidence to meet even the tough standards that the Terkel decision imposes.

The judge wrote that “‘it is anticipated that [defendants] would respect the declaratory judgment,’” but left open the possibility of imposing an injunction if they do not. Slip. op. at 20 (citations omitted). It will be interesting to see whether, in the new COVID-19 relief bill under consideration, Congress adds language to provide additional support for federal eviction moratoriums in the future.

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Harry J. Kelly


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