Federal judge in Texas rules eviction moratorium unconstitutional

A federal judge in Texas ruled the Centers for Disease Control and Prevention’s (CDC) eviction moratorium unconstitutional on Thursday.

U.S. District Judge John Barker, who was originally appointed by President Trump in the Eastern District of Texas in 2018, did not go so far as to issue an injunction on the moratorium but stated that he expected the public health agency to withdraw the ban.

“The federal government cannot say that it has ever before invoked its power over interstate commerce to impose a residential eviction moratorium,” Judge Barker wrote. “It did not do so during the deadly Spanish Flu pandemic. Nor did it invoke such 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.”

For now, there is no change for tenants or landlords under the moratorium. The CDC issued the moratorium in September, and it was originally set to expire at the end of December. The order was then extended through the end of January through a provision in the second stimulus package, and then the Biden administration, upon entering office, extended the order further through the end of March.

The ruling comes on the heels of a group of Texas landlords and property owners suing the CDC and the Department of Health and Human Services in October over the moratorium, stating the power to halt evictions was outside of the power of the federal government.

Barker argued the same, writing that Congress likewise lacked the authority to give the CDC power to halt evictions and that the moratorium threatened to impinge upon landlords’ rights under state law. The plaintiffs were represented by the Texas Public Policy Foundation and Southeastern Legal Foundation, both conservative legal groups.

“The CDC attempted to use COVID-19 as an opportunity to grab power and the court rightfully corrected this egregious overreach,” Robert Henneke, general counsel for the Texas Public Policy Foundation, said in a statement.

The Department of Justice (DOJ) filed a notice on Saturday evening to appeal Judge Barker’s ruling, the Associated Press reported on Sunday.

“The CDC’s eviction moratorium, which Congress extended last December, protects many renters who cannot make their monthly payments due to job loss or health care expenses,” Brian Boynton, acting assistant attorney general in charge of the DOJ’s civil division, said in a statement. “By preventing people from becoming homeless or having to move into more crowded housing, the moratorium helps slow the spread of COVID-19.”

Roughly 9.2 million renters were behind on rent and at risk of eviction as of February 15, according to a Census Bureau Household Pulse survey. About 15 million renters reported they had little to no confidence they would be able to pay their rent in March.

Email Lillian Dickerson