Recent Rulings on CDC Eviction Moratorium Signal Constitutional Fights to Come

A recent Texas federal court ruling declaring unconstitutional the Centers for Disease Control and Prevention’s (CDC) residential eviction moratorium may be the opening salvo in a fight to determine the extent of federal power during a national health crisis. The ruling in Terkel v. Centers for Disease Control and Prevention could result in a wave of new case law on federalism, the commerce clause and the ability of Congress to delegate power during an historic crisis.  Further, a similar case on appeal to the U.S. Court of Appeals for the Eleventh Circuit will be closely watched by Florida landlords.

On Sept. 4, 2020, the CDC issued the Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID-19. The original order, which was set to expire on Dec. 31, 2020, was extended until March 31, 2021. Under the CDC’s order, landlords, owners of residential property or those with the legal power to pursue eviction were prevented from evicting certain “covered” persons from residential property.  The CDC viewed the moratorium as a valid exercise of federal authority to reduce the spread of COVID by limiting movement or preventing homelessness, a justification couched in the commerce clause of the Constitution.

Until the Terkel ruling, most courts accepted the government’s justification for the moratorium including a decision currently on appeal to the Eleventh Circuit. In fact, one of the opinions holding the moratorium constitutional is from a court located in the Fifth Circuit, which will hear an appeal of the Terkel decision.

‘Chambless’ Ruling Presents Conflict of Law

In Chambless Enterprises v. Redfield, a district court in Louisiana determined that the CDC order and its authorizing statute was constitutional. The landlord plaintiffs in Chambless sought to invalidate the moratorium on the premise that Congress had impermissibly delegated its lawmaking authority to the CDC to ban evictions, violating the non-delegation doctrine. The court dismissed this latter argument on the grounds that Congress had provided an “intelligible principle” to guide the CDC, and that Congress “intended to defer to agency expertise.”

More importantly, the court briefly addressed whether enacting the moratorium is within the scope of federal powers and ruled that the government action falls within its right to regulate interstate commerce.  The court referred to the Supreme Court’s holding that “when Congress undertakes to act in an area fraught with medical and scientific uncertainties, legislative options must be especially broad, and courts should be cautious to rewrite legislation.” See Marshall v. United States (1974). Finally, the Chambless court held that the order overrode any state regulations pursuant to the Supremacy Clause.  While Chambless is a prima facie nondelegation matter, the ruling appears to make other constitutional arguments for the order’s validity.

Eleventh Circuit Rules in Favor of CDC

In Brown v. Azar, a district court in Georgia similarly held that Congress has granted broad, flexible powers to federal health authorities that does not violate the doctrine of nondelegation. The court even went further to comment on the CDC’s order, arguing that it is “reasonably calibrated to the seriousness of the disease it is combatting.” The plaintiffs in this case put forth another argument that state and local protections against evictions are sufficient. The court reemployed the holding from Chambless as to these federalism and supremacy clause issues. The court noted that states such as Georgia, where the litigation was pending, had no restrictions on evictions at all, thus requiring federal relief. Indeed, one of the stated purposes of the moratorium was to provide some relief in states which did not limit evictions. The court once again dismissed the nondelegation argument. Like Chambless, the Brown court bolstered the CDC’s argument that the federal government has inherently broad powers to regulate during a crisis comparable to COVID.

The plaintiffs in Terkel, rather than challenging whether Congress could delegate the power to halt evictions to the CDC, questioned whether Congress itself even had the authority to prohibit evictions in the first instance. Unlike previous courts which appeared to take for granted Congress’ ability to delegate, the Terkel court questioned whether the commerce clause could be used by any federal government actor to halt eviction wholesale. Ruling in favor of the plaintiff landlords, the court held: “the 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 executing that power.” By invoking the Necessary and proper clause, the Terkel court made clear that the power to enforce an eviction moratorium is both non-delegable and outside the jurisdiction of the federal government generally. This ruling effectually means that state eviction moratoriums (or lack thereof) are sufficient to regulate “local” issues like eviction.

Chambless and Terkel have been appealed to the Fifth Circuit Court of Appeals and Brown has been appealed to the Eleventh. Due to the conflicting theories in Chambless and Terkel, the Fifth Circuit might be the first appellate court to decide whether the CDC’s order is constitutional. If the moratorium is extended past its March 31 end date, there will potentially be a flurry of lawsuits by landlords on this very issue. For Florida landlords, the decision in the Eleventh Circuit Court of Appeals will be closely watched. In the meantime, these cases may portend a new frontier of litigation with respect to the emergency powers of the federal government.

Michael A. Maugans is an attorney in the commercial litigation department at Pathman Lewis in Miami. Contact him at mmaugans@pathmanlewis.com.