Texas Federal Judge Rules Eviction Moratorium Is Unconstitutional

So why is the moratorium still in effect?

On Feb. 25, an Eastern District of Texas federal judge ruled that the Centers for Disease Control and Prevention’s (CDC’s) national eviction moratorium is unconstitutional. The moratorium was implemented by the CDC in September 2020 and was recently extended by the current CDC director, Dr. Rochelle Walensky, until March 31, 2021. Even with the decision, the eviction moratorium remains in effect, bringing additional confusion to renters and owners alike on the issue.

What Happened

In October 2020, a small landlord along with several property management companies sued the CDC. The landlord has a tenant who hasn’t paid his rent and his alleged erratic behavior has made her other tenants uncomfortable. The landlord claimed she has been providing an apartment for the tenant and paying for his utilities.

The lawsuit asserted that the CDC rule is an overreach, and that even if halting evictions could curb the spread of COVID-19, it’s still an abuse of power. The landlord and the management companies argued that when they expend “substantial financial resources” to build and maintain rental properties, they do so with the reasonable expectation that they will collect rent from tenants. But when the CDC issued its emergency order, a federal agency denied them their benefit of the bargain “on the pretext that exercising their well-established property rights will contribute to the spread of COVID-19,” the suit states.

The landlord and the management companies asked the judge to declare that the CDC’s order exceeded the government’s constitutional authority and asked for a permanent order barring the enforcement of the eviction moratorium.

Ruling

On Feb. 25, U.S. District Judge Campbell Barker found the CDC’s order exceeds the power granted to the federal government, declaring the order unlawful. “Such broad authority over state remedies begins to resemble, in operation, a prohibited federal police power.”

The judge said that the creation of such a moratorium “criminalizes the use of state legal proceedings to vindicate property rights.” In other words, the judge believes the eviction moratorium leaves open the possibility that federal agencies could extend further control over eviction practices in the future. “The government’s argument would thus allow a nationwide eviction moratorium long after the COVID-19 pandemic ends,” he wrote. “The eviction remedy could be suspended at any time based on fairness as perceived by Congress or perhaps an agency official delegated that judgment. Such broad authority over state remedies begins to resemble, in operation, a prohibited federal police power.”

“Although the COVID-19 pandemic persists, so does the Constitution,” Barker wrote. He ruled that the federal government’s power to regulate interstate commerce doesn’t apply to “property rights in buildings—specifically, whether an owner may regain possession of property from an inhabitant.”

Moratorium Continues Despite Ruling

The moratorium for evictions for nonpayment of rent remains in effect. The ruling doesn’t include an injunction, a judicial order restraining the enforcement of the eviction moratorium, and the district court ruling applies only to the particular owners and renters in the legal case. The case wasn’t brought as a class action, so the district court decision isn’t binding on any other owners, tenants, or courts.

In addition, Brian Boynton, acting assistant attorney general for the Justice Department’s Civil Division, has announced that the federal government has appealed the decision. Boynton has pointed out that the district court’s decision “does not extend beyond the particular plaintiffs in that case, and it does not prohibit the application of the CDC’s eviction moratorium to other parties. For other landlords who rent to covered persons, the CDC’s eviction moratorium remains in effect.”

Other cases, other outcomes. It’s important to note that other cases heard in other federal districts have reached opposite rulings relating to the federal eviction moratorium:

• In Brown v. Azar from the Northern District of Georgia, the federal judge denied an injunction brought by owners, arguing that the CDC’s authority in this case is clear and unambiguous;
• In KBW Investment Properties v. Azar from the Southern District of Ohio, the judge denied a request for a temporary restraining order, allowing the moratorium to continue to be in effect; and
• In Chambliss Enterprises LLC v. Redfield from the Western District of Louisiana, the judge stated the CDC’s eviction moratorium “is well supported and falls firmly within the scope of its authority.”

So, while these court cases continue, the federal eviction moratorium remains in effective until March 31.