The opinion is embarrassingly wrong.
For nearly a year, millions of Americans who are unable to pay their rent due to the economic crisis triggered by Covid-19 have had some protections against eviction. Both the CARES Act, which became law last March, and the second Covid relief bill, which was signed in December, included temporary moratoriums on many evictions.
In the interim periods when these statutory safeguards against eviction are not in effect — the CARES Act’s moratorium expired after 120 days, and the second relief bill’s moratorium expired on January 31 — the Centers for Disease Control imposed a similar moratorium using its own authority, citing a federal law that permits the CDC director to “make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases.”
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.”
To get around decisions like Lopez, Barker argues that evicting someone from a home that they pay thousands of dollars a year to rent is not an “economic activity.”
“The law at issue in Lopez criminalized the possession of one’s handgun when in a covered area,” Barker wrote. “The order at issue here criminalizes the possession of one’s property when inhabited by a covered person. Neither regulated activity is economic in material respect.”
Merely quoting this argument is enough to refute it. Again, Barker claims that removing someone from a home that they rent, for money, because that individual failed to pay the agreed-upon sum of money, is not an economic activity.
But just in case it isn’t obvious that Barker is wrong, the Supreme Court’s decision in Russell v. United States (1985) directly contradicts him. Russell held that “the congressional power to regulate the class of activities that constitute the rental market for real estate includes the power to regulate individual activity within that class.”
Barker’s opinion is still wrong even if you accept his claim that evicting someone from a rental home is not an economic activity.
In Wickard v. Filburn (1942), the Supreme Court held that Congress’s power to regulate commerce extends to a farmer’s decision to grow wheat for personal use. Although this wheat was not sold on the commercial market, the Supreme Court explained in Wickard, “home-grown wheat ... competes with wheat in commerce,” and thus can affect the price of wheat in the national market.
As the Court later summarized the Wickard opinion in Gonzales v. Raich (2005), Wickard stands for the proposition that Congress may regulate non-economic activity when that activity, “when viewed in the aggregate,” has a “substantial influence on price and market conditions.”
Thus, in order to affirm Barker’s opinion, an appeals court would need to conclude that all the evictions that take place in the United States do not have a substantial impact on the American housing market. Again, to describe Barker’s opinion is to refute it.
Barker’s decision is the second opinion this week from a Texas-based, Trump-appointed judge that blocks a federal policy while relying on dubious legal reasoning. On Tuesday, Judge Drew Tipton handed down an order blocking a 100-day pause on deportations announced on the first day of the Biden administration.
Tipton’s order is at odds with a long line of Supreme Court decisions holding that courts should be extremely reluctant to force the government to bring immigration enforcement actions against individual immigrants.
Both Tipton and Barker’s orders will appeal to the United States Court of Appeals for the Fifth Circuit, one of the most conservative courts in the country, and then potentially to a Supreme Court where Republicans hold a 6-3 majority. So there is no guarantee that either decision will be reversed by a higher court.
It’s unclear whether Barker would have reached the same conclusion if Donald Trump were still president — both the statutory and CDC moratoriums originally took effect under Trump. But Barker and Tipton’s orders are both previews of what President Joe Biden is likely to experience for the rest of his presidency: Trump judges who, in their zeal to limit the federal government’s power, arguably take leave of their obligation to follow the law.
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