A federal judge has ruled that the CDC edict forbidding evictions is unconstitutional. Duh.
Early in the crisis, President Trump ordered that landlords were forbidden to evict tenants for non-payment of rent under penalty of law. This executive order was followed up in September by the CDC’s order (this is the current CDC order), using the public health exemption to the US Constitution, directing the same thing. This is the history.
On March 27, 2020, the President signed into law the Coronavirus Aid, Relief, and Economic Security Act. Pub. L. No. 116-136, 134 Stat. 281 (2020) (the CARES Act). Among other things, the Act included a 120-day prohibition on the initiation of eviction proceedings for “covered properties,” defined as those participating in specified federal programs or with specified federally backed loans. Id. § 4024, 134 Stat. at 492-93. Congress did not renew the CARES Act, and the Act’s eviction moratorium lapsed on July 27, 2020. A number of States, however, have eviction moratoria or rent-assistance programs of their own. As noted, this lawsuit does not call into question state and local-government measures.
In September 2020, the Centers for Disease Control and Prevention—a component of the U.S. Department of Health and Human Services—issued the agency order challenged here. Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID-19, 85 Fed. Reg. 55,292 (Sept. 4, 2020). The order was originally set to expire on December 31, 2020. Id. at 55,297. Federal legislation then extended the or-der’s expiration date to January 31, 2021. Consolidated Appropriations Act, 2021, Pub. L. No. 116-260, § 502, 134 Stat. 1182, 2078-79 (2020). A subsequent agency order further ex-tended the eviction moratorium, with minor modifications and additional findings, to be effective through the end of March 2021. Temporary Halt in Residential Evictions to Pre-vent the Further Spread of COVID-19, 86 Fed. Reg. 8,020, 8,021 (Feb. 3, 2021) (“This Order further extends and modifies the prior Orders until March 31, 2021[.]”). No party argues that supplemental pleading is necessary to give fair notice of plaintiffs’ continuing challenge to the order as extended, which the government agrees “is identical in substance and effect” to the original order. Doc. 42 at 2; accord Doc. 43 at 2.
The CDC order generally makes it a crime for a landlord or property owner to evict a “covered person” from a residence. 86 Fed. Reg. at 8,020.
This is wrong on so many levels.
CDC usurped the plenary power of state legislatures to regulate what is quintessentially a state responsibility. None of this is to say what President Trump did was legal…it wasn’t…but at least his order was only in effect for 90 days.
As we’ve pointed out time and again, this manufactured crisis surrounding the China virus pandemic has been used as a jackhammer to break up what had, heretofore, been considered pretty basic concepts. Some governors have forbidden church attendance. In New York and New Jersey, police have been used to break up Jewish funerals. Parents have been arrested on empty playgrounds for (gasp) playing with their kids. College students have literally been ordered into solitary confinement in their dorm rooms. But the First Amendment was not the only part of the US Constitution to get treated like it was the new guy in a prison shower. Joe Biden has seriously considered using the coercive power of the federal government to essentially blockade Florida because Governor DeSantis used common sense and ignored the bullsh** masking and business capacity orders demanded by the CDC, see Joe Biden’s Threat to Restrict Travel to Florida Is Stupid, Illegal and Counterproductive but That Doesn’t Mean He Won’t Do It. The judge, in this case, seems keenly aware of how the Wuhan virus is being used to attack the Constitution:
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.
Although the COVID-19 pandemic persists, so does the Constitution.
It should be noted that President Trump appointed the judge.
From here, the case may be appealed to the Fifth Circuit. The judge stopped short of imposing a nationwide injunction and asked the federal government to acquiesce in the judgment. It is hard to see the Biden bunch going along with that. If the case does get appealed, there isn’t a worse venue in the nation for the CDC to make its case.