By Hailey Konnath

Law360 (February 25, 2021, 11:35 PM EST ) The Centers for Disease Control and Prevention can't enforce a nationwide eviction freeze amid the coronavirus pandemic, a Texas federal judge ruled Thursday, holding that the agency lacks the constitutional authority to regulate private property rights.

In his order, U.S. District Judge J. Campbell Barker, an appointee of former President Donald Trump, sided with a group of Texas landlords who've argued that the CDC's September eviction moratorium extends "far beyond the legitimate scope of federal power." The landlords — one individual and six companies — say they're owed thousands of dollars in unpaid rent.

The CDC has maintained that a nationwide eviction ban is within its federal authority to regulate commerce among the states.

The regulated activity in dispute, however, is not the production or use of a commodity that is traded in an interstate market, Judge Barker said Thursday, adding that real estate "is inherently local." The judge granted summary judgment in favor of the property owners, ruling that the order exceeded the CDC's constitutional authority.

"Residential buildings do not move across state lines," he said. "And eviction is fundamentally the vindication of the property owner's possessory interest."

Judge Barker characterized the CDC's order as criminalizing "the possession of one's property when inhabited by a covered person."

Specifically, Judge Barker said that the eviction of one person from a dwelling does not alone have a substantial effect on interstate commerce. Though quarantining an infected person would keep that person from traveling across state lines, the CDC's order "is not such a quarantine," according to the order.

The government's argument in support of such a measure would also support federal regulation of marriage and divorce, the judge said. It would also permit a federal eviction moratorium for any reason, he said.

"Such broad authority over state remedies begins to resemble, in operation, a prohibited federal police power," Judge Barker said. He added that "[a]lthough the COVID-19 pandemic persists, so does the Constitution."

The judge declined to issue an injunction blocking the evictions ban, saying that he anticipates the CDC will respect his judgment.

Rob Henneke of the Texas Public Policy Foundation, counsel for the landlords, told Law360 on Thursday that his clients are "glad to have their constitutional rights vindicated."

The moratorium was unfair to millions of landlords across the country, he said. The cause of the economic downturn was largely the government's policies in the first place, Henneke said.

"So if there is anger to be directed, it should not be directed at the private property owners who are just trying to pay their tax bills and mortgages," he said.

Henneke added that the Constitution was written for extraordinary times.

"And there is no COVID-19 exception to the Constitution," he said.

CDC representatives didn't immediately return a request for comment late Thursday.

The moratorium is the federal government's second stab at preventing evictions amid the pandemic. Under the Coronavirus Aid, Relief and Economic Security Act, Congress imposed a limited freeze on evicting residents of properties with federally-backed mortgages, as well as participants in federal housing programs. The ban expired on July 24.

The CDC stepped in on Sept. 1, prohibiting evictions through at least the end of the year. The CDC's ban is more sweeping and applies to all tenants, regardless of where they live, as long as they meet certain criteria tied to the precariousness of their situation and ability to pay, among other factors.

The CDC has couched its eviction freeze in public health terms, saying people who are booted from their homes are likely to move around, in some cases crossing state lines. This could increase transmission rates and further spread the virus, according to the agency.

The landlords argued in their October suit that the moratorium does nothing to stop the spread of COVID-19 and goes beyond the federal government's powers.

Even if the CDC could justify the ban on the grounds of public health, the landlords argued that neither the Commerce nor Necessary and Proper clauses of the Constitution give the federal government the power to enforce it. Those allow the government to regulate interstate commerce and impose laws deemed necessary to carry out its enumerated powers.

Kimberly Hermann of the Southeastern Legal Foundation, another attorney representing the property owners, said that Thursday's order "serves as a notice to the Biden administration that the Constitution limits government power."

The landlords are represented by Robert Henneke, Chance Weldon and Joseph Aaron Barnes Sr. of the Texas Public Policy Foundation, and Kimberly S. Hermann and Celia Howard O'Leary of the Southeastern Legal Foundation.

The government is represented by Eric Beckenhauer, Leslie Cooper Vigen and Steven A. Myers of the U.S. Department of Justice's Civil Division.

The case is Lauren Terkel et al. v. Centers for Disease Control and Prevention et al., case number 6:20-cv-00564, in U.S. District Court for the Eastern District of Texas.

--Additional reporting by Jack Queen. Editing by Regan Estes.

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