An Eastern District of Texas ruling in Terkel v. Centers for Disease Control and Prevention, et al., determined the Centers for Disease Control and Prevention (CDC) lacked the authority to impose a national moratorium against evictions because of the novel coronavirus (COVID-19).

In deciding the issue presented to the court — “[w]hether the federal government has authority to order property owners not to evict specified tenants.” Id. at 1. Judge J. Campbell Barker concluded “[t]he CDC order exceeds the power granted to the federal government to ‘regulate Commerce … among the several States’ and to ‘make all Laws which shall be necessary and proper for carrying into Execution’ that power.” Id at 20. The court therefore held the CDC’s order is unlawful as “contrary to constitutional … power.” Id. at 20. This ruling limits federal authority and Congress’ use of the commerce clause to regulate matters the court deemed solely intrastate that have no impact or causal connection to interstate commerce.

To slow the spread of COVID-19, the CDC determined certain “covered persons” could not be evicted from their homes for failure to pay rent. Per the order, “[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 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 4-5.

The court acknowledged the public health concern and the transmission of COVID-19 but was not persuaded by the government’s argument. The government argued, “[t]he CDC order may be rationally viewed as substantially affecting interstate commerce because 15% of changes in residences each year are between the States.” Id. at 18. Judge Barker was not convinced by the census data proffered by the government. He concluded that “[t]he same census data cited by the government here show that changes in marital status result in almost ten times more residential moves than evictions and foreclosures.” Id. at 19.

The National Housing Law Project (NHLP) contends the practical impact of Terkel will be far worse than its limited legal effect suggests. Given the opinion, the NHLP believes some courts may adopt the rationale in Terkel as persuasive authority to improperly evict a “covered person.”

On February 27, the Justice Department announced its decision to appeal and further staked out its position that the Terkel decision does not extend beyond the plaintiffs in that matter, and it does not prohibit the application of the CDC’s eviction moratorium to other parties.