On Thursday evening, a Trump-appointed judge on a federal court in Texas handed down a decision that calls into question the legality of these moratoriums. Currently, there is no congressional moratorium on evictions in place, only the CDC moratorium, although it is likely that the $1.9 trillion Covid-19 relief bill currently being negotiated in Congress will implement a new statutory moratorium.
Though Judge J. Campbell Barker’s order in Terkel v. Centers for Disease Control and Prevention only explicitly strikes down the CDC’s moratorium, Barker’s opinion is fairly broad and suggests that congressional regulation of evictions may also be unconstitutional. His opinion, if embraced by higher courts, could endanger any federal regulation of the housing market, including bans on discrimination in housing.
The implications of Barker’s opinion, explained
The opinion is a mélange of libertarian tropes, long-discarded constitutional theory, and statements that are entirely at odds with binding Supreme Court decisions.
The thrust of Barker’s Terkel opinion is that the Constitution’s commerce clause, which provides that Congress may “regulate commerce … among the several states,” is not broad enough to permit federal regulation of evictions.
But, as the Supreme Court explained in United States v. Lopez (1995), the commerce clause gives Congress broad authority to regulate the national economy — including any activity that “‘substantially affects’ interstate commerce.” Though Lopez struck down a federal law prohibiting individuals from bringing guns near school zones, the Lopez opinion emphasizes the breadth of Congress’s power to regulate the economy. “Where economic activity substantially affects interstate commerce,” Chief Justice William Rehnquist wrote for the Court, “legislation regulating that activity will be sustained.”