As Americans reflect on the past year and how much power the federal government has taken for itself in the name of COVID-19, one of the most far-reaching power grabs came directly from the Centers for Disease Control (CDC) in the form of a nationwide eviction moratorium order.
Under the order, private property owners are required to allow non-paying renters to live rent-free until the federal government says otherwise, costing landlords billions of dollars in unpaid rent — all while landowners remain responsible for property taxes, mortgages, and the costs of their property. And if a property owner tries to get their property back by filing an eviction case, the federal government says it can fine them up to $100,000 and even put them in jail.
But last week, the U.S. District Court for the Eastern District of Texas entered a final judgment declaring the federal government’s eviction moratorium unconstitutional and set the CDC order aside. The case filed by Texas Public Policy Foundation and Southeastern Legal Foundation on behalf of private property owners argued that the eviction order was unconstitutional because the federal government cannot interfere with private property owners’ rights or access to the courts, and the court agreed. Though only a handful of landlords filed suit, the intent of the court was clear in its decision to set aside the entire CDC order, rendering it today of no legal force or effect. While the Biden Administration now seeks to limit the scope of the final judgment, representations by the Department of Justice attorney at the final hearing were clear that the federal government pledged to abide by the court’s decision.
The CDC invoked the federal government’s power over interstate commerce and pointed to COVID-19 as its reason for needing the eviction moratorium. But just like the many other regulations we have seen since March 2020, it turns out the pandemic had nothing to do with it. After SLF and TPPF filed suit, the federal government admitted as much and claimed to have the authority to suspend residential evictions for any reason, including its own views on “fairness.”
If the federal government was correct and the Constitution gave it the power to base decisions on the vagaries of a subjective “fairness” standard, we would have no Constitution at all. Instead, we’d have a government that could (and would!) cancel anyone and their rights for any reason — a government that can suspend the rights to worship, assembly, and free speech in the name of “fairness.”
As we reflect on the last year, we challenge all Americans to recall how “14 days to flatten the curve” turned into potential jail time for private property owners who don’t provide free housing, despite their own ongoing cost burdens that were never addressed in the $4-plus trillion doled out during the pandemic. If the government can cancel property rights, what else can it cancel?
Fortunately, we do have the Constitution’s requirement of much more than fairness to justify government action. And fortunately, we have private property owners who refused to be cancelled and instead stood up for the rights of all Americans.
The court’s decision sets a critical precedent — the eviction moratorium imposed by the federal government is unconstitutional. That means that not even Congress can come in behind this decision and legislate. It is just flat-out unconstitutional. It also makes clear that even during a pandemic, the Constitution persists. For it is in times of crisis when our constitutional protections are most needed — and tragically, most vulnerable.
Robert Henneke is the general counsel of the Texas Public Policy Foundation. Kimberly Hermann is the general counsel of the Southeastern Legal Foundation. Mr. Henneke and Ms. Hermann are co-lead counsel for the Plaintiffs in the Terkel v. CDC lawsuit.
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