Terkel v. Centers for Disease Control & Prevention

• Decision Date: 25 February 2021
• Docket Number: No. 6:20-cv-00564,6:20-cv-00564
• Citation: 521 F.Supp.3d 662
• Court: U.S. District Court — Eastern District of Texas
• Parties: Lauren TERKEL et al., Plaintiffs, v. CENTERS FOR DISEASE CONTROL AND PREVENTION et al., Defendants.

521 F.Supp.3d 662

Lauren TERKEL et al., Plaintiffs,

v.CENTERS FOR DISEASE CONTROL AND PREVENTION et al., Defendants.

No. 6:20-cv-00564

United States District Court, E.D. Texas.

Signed February 25, 2021

Celia Howard O'Leary, Kimberly S. Hermann, Southeastern Legal Foundation, Roswell, GA, Chance Dean Weldon, Joseph Aaron Barnes, Sr, Ryan Daniel Walters, Robert Earl Henneke, Texas Public Policy Foundation, Austin, TX, for Plaintiffs.

Leslie Cooper Vigen, Steven Andrew Myers, U.S. Department of Justice, Washington, DC, for Defendants Centers for Disease Control and Prevention, Director Rochelle P. Walensky, Acting Chief Sherri A. Berger, United States Department of Health and Human Services, Acting Secretary Norris Cochran.

Leslie Cooper Vigen, U.S. Department of Justice, Washington, DC, for Defendant United States of America.

OPINION AND ORDER

J. Campbell Barker, United States District Judge

This lawsuit presents the question whether the federal government has authority to order property owners not to evict specified tenants. Plaintiffs argue that this authority is not among the limited powers granted to the federal government in Article I of the Constitution, and thus the decision whether to enact an eviction moratorium rests with a given State. Disagreeing, the federal government argues that a nationwide eviction moratorium is within Article I's grant of federal authority to regulate commerce among the States.

Only that issue is posed here. This lawsuit does not question that the States may regulate residential evictions and foreclosures, as they have long done. For instance, during the Great Depression, 27 States enacted foreclosure moratoriums and other laws meant to mitigate the effects of a wave of foreclosures. Geoff Walsh, The Finger in the Dike: State and Local Laws Combat the Foreclosure Tide , 44 Suffolk U. L. Rev. 139, 139-43 (2011). In upholding one such law against a challenge not raised here, the Supreme Court recognized the "control which the state retains over remedial processes" in this area as part of the State's "police power, [which] is an exercise of the sovereign right of the government to protect the lives, health, morals, comfort, and general welfare of the people." Home Bldg. Ass'n v. Blaisdell , 290 U.S. 398, 434, 437, 54 S.Ct. 231, 78 L.Ed. 413 (1934).

But while "[t]he States have broad authority to enact legislation for the public good—what we have often called a ‘police power’ "—"[t]he Federal Government, by contrast, has no such authority[.]" Bond v. United States , 572 U.S. 844, 854, 134 S.Ct. 2077, 189 L.Ed.2d 1 (2014). The question here is whether a nationwide moratorium on evicting specified tenants is within the limited powers that our Constitution grants to the federal government, namely, its authority to legislate as necessary and proper to regulate commerce among the several States.

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. Hr'g Tr. (Doc. 21) at 52:3-8 (government's representation). Nor did it invoke such a power during the exigencies of the Great Depression. Id. The federal government has not claimed such a power at any point during our Nation's history until last year. Id. at 55:9-17.

And the government's claim of constitutional authority is broad. The government admits that nothing about its constitutional argument turns on the current pandemic:

THE COURT: [T]here's nothing special about COVID 19? Congress could do the same thing, the same temporary suspension of tenant evictions, if there was an inability to pay rent because of some other reason that Congress finds important? My example was cohabitating spouses sent to prison, but there could be others. That is your Commerce Clause argument; correct?

MS. VIGEN: That is our Commerce Clause argument, correct.

Hr'g Tr. at 56:13-21. The federal government thus claims authority to suspend residential evictions for any reason, including an agency's views on "fairness." Id. at 53:11-23.

Given the open-textured nature of the relevant constitutional text, "the question of congressional power under the Commerce Clause ‘is necessarily one of degree.’ " United States v. Lopez , 514 U.S. 549, 566, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995) (quoting NLRB v. Jones & Laughlin Steel Corp. , 301 U.S. 1, 37, 57 S.Ct. 615, 81 L.Ed. 893 (1937) ). Reasonable minds may differ given the lack of "precise formulations." Id. at 567, 115 S.Ct. 1624. But here, after analyzing the relevant precedents, the court concludes that the federal government's Article I power to regulate interstate commerce and enact laws necessary and proper to that end does not include the power to impose the challenged eviction moratorium.

Background

1. COVID-19 is a disease "caused by a new coronavirus first identified in Wuhan, China, in December 2019." See Centers for Disease Control and Prevention, About COVID-19 (Sept. 1, 2020), www.cdc.gov/coronavirus/2019-ncov/cdcresp onse/about-COVID-19.html. "Although most people who have COVID-19 have mild symptoms, COVID-19 can also cause severe illness and even death." Id. The disease "is thought to spread mainly through close contact from person to person." See Centers for Disease Control and Prevention, How COVID-19 Spreads (Oct. 28, 2020), www.cdc.gov/corona virus/2019-ncov/prevent-getting-sick/how-covid-spreads.html. The public and private response to COVID-19 has led to business disruptions for many.

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 order'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 extended the eviction moratorium, with minor modifications and additional findings, to be effective through the end of March 2021. Temporary Halt in Residential Evictions to Prevent 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. A "covered person" is any resident who provides the landlord or property owner with a declaration that makes five certifications, namely:

(1) the resident has used best efforts to obtain available government assistance for rent or housing;

(2) the resident falls below certain income thresholds, generally $99,000 annually or $198,000 annually if filing a joint tax return;

(3) the resident is unable to pay the full rent due to "substantial loss of household income, loss of compensable hours of work or wages, a lay-off, or extraordinary out-of-pocket medical expenses"; (4) the resident is using best efforts to make timely partial payments that are as close to the full payment as circumstances permit; and

(5) the resident has no other available space for occupancy at the same or less housing cost and, if evicted, would either need to live without housing or move into a congregate or shared-living setting.

Id. at 8,020-8,021.

The order prohibits any action to remove or cause the removal of a covered person from a residential property. Id. The order allows evictions, however, if a resident is (1) engaging in criminal activity on the premises; (2) threatening the health and safety of other residents; (3) damaging or posing an immediate and significant risk of damage to property; (4) violating any applicable building code, health ordinance, or similar regulation relating to health and safety; or (5) violating any other contractual obligation, other than timely payment of rent or similar fees. Id. at 8,022.

A person who engages in a prohibited eviction is subject to a criminal penalty of up to one year of imprisonment, to be followed by up to one year of supervised release, and a fine of up to $250,000. 42 U.S.C. § 271 ; 18 U.S.C. §§ 3559(a)(6), 3583(b)(3) ; 42 C.F.R. § 70.18 ; see 86 Fed. Reg. at 8,025 (citing criminal provisions). An organization that engages in a prohibited eviction is subject to a criminal penalty of a fine of up to $500,000. 42 C.F.R. § 70.18 ; see 86 Fed. Reg. at 8,025. The order applies in any State that does not offer "the same or greater" protections than does the order. Id. at 8,021.

The order pauses only evictions, not financial obligations. Id. at 8,021-8,022 ("This Order does not relieve any individual of any obligation to pay rent, make a housing payment, or comply with any other obligation that the individual may have under a tenancy, lease, or similar contract.")....