A Federal Eviction Ban Infringes on Constitutional Rights

Throughout the COVID-19 pandemic, federal and state governments have imposed multiple policies that infringe on constitutional rights in the name of protecting public health. Courts have routinely overlooked constitutional violations, deferring to government efforts to deal with the exigencies of the moment. Thankfully, judicial deference to state and federal diktats is ending.

In November, the Supreme Court in Roman Catholic Diocese of Brooklyn v. Cuomo shot down New York’s occupancy restrictions on in-person worship that were more severe than limits on secular activities because they “strike at the very heart of the First Amendment’s guarantee of religious liberty.” The court had twice declined to block similar state restrictions on religious worship.

Last week, a federal district court in Texas, in Terkel v. Centers for Disease Control and Prevention, reined in federal constitutional overreach. The case deals with a September 2020 order from the CDC making it a crime, subject to a penalty of up to one year of imprisonment and a fine of up to $250,000, to evict certain tenants for not paying rent. A person is covered if they provide a written declaration to their landlord that they earn less than $99,000 a year, they are trying to but cannot pay their rent due to a loss of income or work or medical expenses, they sought government rental assistance, and that eviction would make them move into close quarters with others or render them homeless.

Two federal district courts,one in Louisiana and one in Georgia, rejected claims that the order exceeds the CDC’s statutory and regulatory authority. The plaintiff property owners in Terkel took a different approach. They argued that while states have constitutional police powers to issue eviction moratoria to protect the public health and welfare, as many states have done, the CDC moratorium exceeds the limited powers granted to the federal government by the Constitution.

The government claimed the CDC order was allowed under the legislative powers granted to Congress by the Constitution’s commerce clause to regulate activities that substantially affect interstate commerce, which could then be delegated to the CDC. The commerce clause was the same crutch the government unsuccessfully relied on to justify the Obamacare individual mandate.

The Texas court held that the government failed to establish that the regulation of local evictions has a substantial effect on interstate commerce. Property rights in buildings are “inherently local.” Evictions are not an economic activity involving the production or use of a commodity that is traded in an interstate market.

The CDC claimed public health benefits for the order, arguing that preventing evictions would protect tenants who have to move from infection or from infecting others. Yet, the order did not limit enforcement to evictions that have an impact on interstate commerce, and neither Congress nor the agency made findings that the regulation of interstate commerce would be undercut without the order.

Read the full article at The Washington Examiner.