The Corner

Law & the Courts

Another Federal Court Invalidates the Eviction Moratorium

Centers for Disease Control and Prevention headquarters in Atlanta, Ga. (Tami Chappell/Reuters)

Our Brittany Bernstein reports that a federal district judge in Washington, D.C., has invalidated the eviction moratorium ordered by the Centers for Disease Control, initially during the Trump administration, and recently extended (for the second time) during the Biden administration. It is now set to run through June 30.

In her 20-page opinion, Judge Dabney L. Friedrich (a Trump appointee) observes that hers is only the most recent of several rulings holding that the CDC exceeded its statutory authority (two district court decisions go the other way, at least at the preliminary injunction stage).

As Brittany points out, the issue before Judge Friedrich was statutory, viz., whether the CDC exceeded the authority given it by Congress to make rules to combat the spread of communicable disease. Judge Friedrich persuasively reasons that Congress empowered the agency to prescribe conditions related to “specific targets” — basically, objects or animals — that could be sources of infection. That is far afield from prohibiting owners from evicting tenants who don’t pay rent.

Americans should disturbed, though not surprised, by the government’s contention that Congress has empowered the CDC to decree any regulation, no matter how attenuated, that unelected government experts, in their wisdom, deem necessary to suppress infectious disease.

Friedrich observed that, in addition to the statutory cases, a federal district court in Texas ruled that the government lacks the constitutional authority to order a nationwide moratorium on evictions. Back in mid-March, I wrote about that case, decided by Judge J. Campbell Barker, another Trump-appointee, here.

In light of the Justice Department’s position in the statutory case in Washington, it’s worth reiterating what I related about Justice Department’s position in the constitutional case:

In the end, there is only one reason I think Judge Barker’s ruling has a chance of standing: The sheer arrogance exhibited by federal officials at the suggestion that the Constitution limits their power.

Before issuing his opinion, the judge conducted oral argument between the parties. In response to his questions, the Justice Department admitted that COVID-19 was merely the excuse used — the opportunity exploited — by the federal government in dictating what owners may do with their property. The judge asked: What if there were no COVID-19? Could Congress forbid evictions because of some other reason it decided was important? A reason that had nothing whatsoever to do with commerce?

The Justice Department lawyer asserted that merely by invoking the Commerce Clause — Washington’s own talisman — the federal government could suspend residential evictions for any reason. Judge Barker was struck by the government’s proclamation that any reason includes an agency’s subjective view of what “fairness” calls for.

For that alone, the courts — the Supreme Court especially — should rethink the monster they’ve created. They should . . . but they probably won’t.

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