Federal Judge Rules CDC Eviction Moratorium Unconstitutional

AP Photo/Gillian Flaccus

Good news for limited government advocates. A federal judge in Texas has ruled that the moratorium on evictions ordered by the Centers for Disease Control is unconstitutional.


The CDC ruling had been challenged by a group of property owners and landlords who argued that the eviction ban exceeded the government’s authority to act. Judge John Barker agreed.

In a broad ruling, while Judge Barker stopped short of issuing an injunction ordering the CDC to cease enforcing the policy, he had some telling words for the government.

“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 deadly 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.

“Although the COVID-19 pandemic persists, so does the Constitution,” Barker, a Trump appointee, wrote.


The ruling punctuates a legal effort that began when a group of Texas landlords and property owners sued the CDC and the Department of Health and Human Services in October over the Eviction Moratorium Order that was issued by the Trump administration in September.

The order, citing the fact that “COVID-19 presents a historic threat to public health,” put a temporary halt on residential evictions.

But the property owners argued in their lawsuit that the federal government didn’t have the power to stop evictions. Barker sided with that argument, writing in his ruling that Congress also lacked the authority to grant the CDC the power to halt evictions nationwide, and noted that the moratorium threatened to encroach on landlords’ rights under state law.


Back in September when the CDC first issued the ban on evictions, many questioned why a public health agency was getting involved in an interstate commerce matter. Liberals saw it as “creative.” Everyone else saw it as dangerous.

But it’s an open question whether Barker’s ruling can withstand any kind of appeal. Many judges are enamored with the idea of expanding the power of the government in a crisis and take a far broader view of government responsibilities. It’s likely that proponents of the eviction ban will find a friendly judge somewhere to reimpose it.

The problem is that something has to be done or there are likely to be millions of people thrown out into the streets and hundreds or even thousands of landlords going under. There are an estimated 10 million tenants who are currently in arrears to their landlords — some by several months. Landlords themselves are desperate as many of them have multiple tenants who aren’t paying rent.

The situation begs for a solution for both tenants and landlords from Congress. But like all other issues demanding attention from Congress, nothing is likely to get done.

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