Federal Judge Rules CDC’s Pandemic Eviction Moratorium Unconstitutional

A federal judge in Texas ruled on Thursday that the CDC’s eviction moratorium that was supposed to let people stay in their homes even if they lost income during the coronavirus pandemic is unconstitutional. With roughly 12 million tenants in the U.S. behind on rent, the ruling could have serious consequences for millions of people who can’t afford to put a roof over their head.

The ruling was issued by U.S. District Judge John Barker, a Trump appointee, who argued that eviction moratoriums were never issued for previous disasters, including the 1918 Spanish Flu pandemic.

“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,” Judge Barker wrote in his 21-page ruling Thursday.

The CDC first issued its eviction moratorium in September 2020, which was supposed to expire at the end of December 2020, but it was extended by another month by Congress. The Biden administration extended the moratorium until March, though it’s not clear yet whether there will be another extension coming.

The nationwide eviction moratorium requires tenants to give landlords a signed document swearing that they don’t make too much money ($99,000 for a single tax filer) and have experienced financial hardship during the pandemic, including a loss of income. The tenant must also make an effort to give their landlord partial payments, according to the CDC moratorium.

Judge Barker is very much concerned with the unprecedented nature of the order, as any conservative might be, and cites a 2010 Supreme Court decision that warns, “[p]erhaps the most telling indication of [a] severe constitutional problem ... is the lack of historical precedent.”

Of course, there hasn’t been a serious airborne pandemic that’s killed 500,000 Americans in a single year over the past century. But that doesn’t seem to concern Barker much. The judge hangs his hat on the idea that the federal government simply can’t do something if it hasn’t been done before.

Some municipalities have issued their own eviction moratoriums during the covid-19 pandemic on top of the CDC order, but there are different rules and regulations for each state. For example, renters experiencing hardship in New York can get relief through May 2021, but only if they submit the right paperwork saying they still can’t pay their rent.

But it should be made clear that an eviction moratorium isn’t the same thing as cancelling rent. Once the moratorium is lifted, all tenants in the U.S. will still owe every penny they didn’t pay when they started to fall behind. And that really seems like the most cruel aspect of all this. The moratorium wasn’t even a way to wipe away debt and get people back on their feet. It’s just a way to push payments down the road so that people experiencing the worst of the pandemic are on the hook for a lot of money.