DOJ to Appeal Judge’s Order on Federal Eviction Ban

February 27, 2021 Updated: February 28, 2021

The Justice Department (DOJ) gave notice on Feb. 27 to a federal judge that it intends to appeal his ruling that found the federal government doesn’t have the authority to issue a nationwide eviction moratorium.

“The Department of Justice respectfully disagrees with the February 25 decision of the district court in Terkel v. CDC that the CDC’s eviction moratorium exceeds Congress’ powers under the Commerce Clause and the Necessary and Proper Clause, and the Department has appealed that decision,” Brian Boynton, acting assistant attorney general for the DOJ’s Civil Division, said in a statement.

U.S. District Judge John Barker from the Eastern District of Texas on Feb. 25 ruled (pdf) in favor of a group of property managers and landlords who challenged a Centers for Disease Control and Prevention (CDC) order that prevented them from temporarily evicting tenants for non-payment of rent during the CCP (Chinese Communist Party) virus pandemic.

The CDC order in question was initially issued in September 2020 and was originally set to expire on Dec. 31, 2020. It was extended to Jan. 31 and then again until the end of March. The order was aimed at mitigating the spread of the CCP virus by reducing congregation in shared living settings or in unsheltered homeless areas, and support state and local responses to the disease.

The order made it a crime for a landlord or property owner to evict a “covered person” from a residence, subject to several exceptions. Tenants who are covered by the order include those who have used their best efforts to obtain government assistance for rent or housing; or whose income falls below a certain income threshold.

He said that while states usually have the authority to issue eviction moratoriums, one issued by the federal government is unlawful because the U.S. Constitution doesn’t give it that power.

“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,” Barker wrote in his 21-page ruling (pdf).

His ruling issues a declaratory judgment indicating that the CDC order is unconstitutional. But he stopped short of issuing an injunction, saying that he believes the federal government would respect his declaration. However, he gave the plaintiffs an option to seek an injunction in the event the federal government fails to act according to his ruling.

Boynton defended the CDC order, saying that it’s necessary to slow the spread of the pandemic.

“The CDC’s eviction moratorium, which Congress extended last December, protects many renters who cannot make their monthly payments due to job loss or health care expenses. By preventing people from becoming homeless or having to move into more-crowded housing, the moratorium helps to slow the spread of COVID-19,” Boynton said.

He argued that Barker’s ruling only applies to the particular plaintiffs in the Terkel v. CDC case and does not block the CDC order application to other parties. The DOJ is also defending another case in the U.S. District Court in the District of Columbia that challenges the CDC eviction moratorium.

The department, in that case (pdf), argued that Barker’s declaration is “irrelevant to this case, Plaintiffs here do not contend that the CDC Order exceeds Congress’s powers under the Commerce Clause and the Necessary and Proper Clause,” and that Barker’s ruling only applies to the case he was ruling on.

The lawsuit was filed against the United States, the CDC, the Department of Health and Human Services (HHS), and three HHS officials responsible for the order.

Lawyers for the plaintiffs didn’t respond to The Epoch Times’ request for comment by press time.

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