Texas Judge Rules Federal Eviction Moratorium is Unconstitutional
Get ready to ride the eviction wave
A federal judge in Texas ruled on February 25 that the federal eviction moratorium that’s been in place since September is unconstitutional.
US District Judge J. Campbell Barker of the Eastern District of Texas said the ban represented an imaginary power created by the government which exceeds the powers granted under Article 1 of the constitution. The ruling stems from a challenge to the moratorium fomented by state property managers back in October 2020.
“Although the Covid-19 pandemic persists, so does the Constitution,” Judge Barker wrote in his decision
The Centers for Disease Control’s (CDC) order prohibits landlords from evicting “covered persons” from their properties during the pandemic. These persons are identified as having used best efforts to obtain housing, have single income below $99,000 annually and $198,000 if filing taxes jointly, signing a declaration of financial hardship because of the pandemic, and who are making reasonable efforts to pay rent given their financial situation.
It was first issued under the direction of President Donald Trump in September 2020 and contained a 120-day sunset provision. The order has since been extended multiple times, even while states moved to enact local prohibitions that Judge Barker said were perfectly allowable.
Upon entering the White House, President Joe Biden moved swiftly to extend the moratorium. It’s currently in effect through September 2021.
However, Judge Barker asserted a circular argument in striking down the CDC’s order. He argued that the government's response to the unprecedented pandemic itself lacked precedent. Therefore, Barker said, the government’s only option is to respond to COVID-19 in a similar manner to other pandemics such as the outbreak of the Spanish Flu of 1918.
"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 deadline 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,” Barker wrote in the 21-page decision.
His ruling is also fairly broad, and directly calls into question the legality of a statutory eviction moratorium, similar to the one tucked away in Biden’s $1.9 trillion COVID-19 relief bill.
Ian Millhiser, a senior correspondent at VOX, surmised the ruling as “a mélange of libertarian tropes, long-discarded constitutional theory, and statements that are entirely at odds with binding Supreme Court decisions.”
The thrust of Judge Barker’s opinion, Millhiser says, is that the Article 1 commerce clause — which authorizes Congress to “to regulate Commerce with foreign Nations, and among the several States, and with Indian Tribes” — is not broad enough to include eviction prohibitions, an administrative function handled at the local level.
But, the Supreme Court interpreted the commerce clause to include any activity that “substantially affects’ interstate commerce” in United States v. Lopez (1995). To get around this precedent, Judge Barker contends that evictions are not economic activities, and therefore, cannot be regarded as interstate commerce.
“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,” Barker wrote.
The inherent contradiction in Judge Barker’s argument is clear, Millhiser says.
“Merely quoting this argument is enough to refute it. Again, Barker claims that removing someone from a home that they rent, for money, because that individual failed to pay the agreed-upon sum of money, is not an economic activity,” Millhiser wrote.
Barker‘s initial appointment to the Eastern District bench by President Trump in 2018 was fiercely opposed by the Leadership Conference on Civil and Human Rights because of his extreme views on fair proceedings for criminal defendants, voting rights, and immigration.
At just 41-years-old, the group described Baker as a “young, conservative ideologue” who “does not possess the neutrality and fair-mindedness necessary to serve in a lifetime position as a federal judge.”
While Texas landlords led the charge to challenge the moratorium, the state is administering one of the largest landlord relief packages in the country. The Texas Department of Housing and Community Affairs is administering a $1.3 billion rental relief program for landlords. Qualified applicants can receive up to 15 months of rent and utility assistance from the program.
Meanwhile, landlords in several Texas cities continue to file eviction paperwork with county judges, alluding to the economic impact they’re feeling from the pandemic. In Harris County, which is home to Houston, over 33,000 eviction cases have been filed within the past two weeks. Another 850 cases are awaiting the signature of Travis County judges as well.
It’s no secret that the man who appointed Judge Baker to the bench has deep ties to the real estate industry. According to the Center for Responsive Politics, the industry has favored Republicans over Democrats in every national race since 1992. Five of the top seven contributing real estate firms heavily donate to GOP candidates.
However, since Judge Baker didn’t immediately issue an injunction, lawyers and housing advocates were at odds about the impact of the ruling.
According to estimates by the National Low Income Housing Coalition, overturning the federal eviction moratorium would immediately place up to 40 million renters in danger of losing their homes during a public health crisis.
Diane Yentel, president and CEO of NLIHC, said in a statement to The Texas Tribune that current moratorium protections remain in place for tenants for now.
“[Barker] did not issue an injunction, leaving the protections of the moratorium still in place, but the ruling and its effects are deeply concerning. Evictions risk lives, drive families deeper into poverty and strain our already overstretched public health systems,” Yentel said.
Robert Henneke, general counsel litigation director for the Texas Public Policy Foundation, which filed the lawsuit, told the newspaper that the federal government “should adhere to Baker’s ruling without needing an injunction.”
“The judgment is what declares the order unconstitutional. The Department of Justice takes the position that it will adhere to a judgment without having to have an injunction against it,” he said.
Housing advocates slammed the ruling, fearing it could trigger a tsunami of evictions across the country. Landlords have also filed similar challenges in Louisiana, Georgia, and Tennessee.
Meanwhile, the winter storms in Texas have only made the situation worse., according to Emily Benfer, a visiting professor of law at Wake Forest University.
“This decision is a major deviation from all other district court decisions that upheld the CDC moratorium as constitutional,” she told CNBC.
