On February 25, 2021, a federal court in Texas held that the CDC moratorium on residential evictions (which was to run through March 31, 2021, under the latest extension) is unconstitutional. The case is Lauren Terkel et al., Plaintiffs, v. Centers for Disease Control and Prevention et al. I don’t want to get too much into the weeds, but let me give you a summary.
The plaintiffs in the case are individuals and corporate entities to whom tenants presented declarations pursuant to the CDC moratorium, such that they were unable to evict the tenants. The government argued that the moratorium is proper under the Commerce Clause of the US Constitution. In order to do the analysis under that provision, the Court found that the Necessary and Proper Clause also had to be considered. The Court walked through the constitutional analysis, citing Supreme Court and other precedent where applicable, and found that there is nothing about the moratorium that satisfies the requirements of the Commerce Clause as seen through the Necessary and Proper lens, such that the moratorium could not survive challenge.
The case was also interesting procedurally in that it came on for preliminary injunction, and then instead of moving toward a permanent injunction, the plaintiffs moved for summary judgment (the Federal Rules of Civil Procedure allow this). The government agreed that it was a legal matter, not dependent on disputed facts, so the Court proceeded on summary judgment. The Court also noted that in granting summary judgment to the plaintiffs (and finding the moratorium unconstitutional), it felt no need to issue an injunction since the government had said it would not seek to enforce the moratorium. The Court did leave open the opportunity for an injunction if the government changed its mind on enforcement.
The next step is to see if the government appeals. If so, the appeal goes to the federal Court of Appeals for the Fifth Circuit. That court can affirm or reverse this decision. The appeals court may also decide to issue a stay of the current decision/order pending its ruling. If the case is appealed and a decision issued, then either party will have the right to request that the US Supreme Court review the case. Whether the Supreme Court takes the case may depend on the timing, i.e., if it is then past March 31, 2021 and the moratorium has not been extended (contingent on a finding of constitutionality), then the Supreme Court may find the case moot and turn it down.
In the meantime, this is good news for landlords around the country (and their attorneys) who can now proceed with evictions that had been halted. It is bad news for courts as there will be a flood of new eviction cases filed to go along with those that were filed but halted due to the moratorium. As for the tenants, it is just back to “business as usual” and the normal state court eviction process.
If you need assistance with a landlord-tenant matter, please contact us through the link on this website.
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