In America, the people are sovereign and straightjacketed. Faced with a problem — passing, like a pandemic, or persistent, like poverty — they can call on their government to answer it. But, when they act, courts can tell them they’ve overstepped their Constitution’s grant of powers. Recently, several federal district courts, faced with a novel national eviction ban, have tried to assess if the people have erred. Two — in Georgia, and Louisiana — upheld the eviction order; three others — in Ohio, Tennessee, Texas — struck it down. Only one, though, reached the constitutional question: in Terkel v. Centers for Disease Control and Prevention, Judge Barker found that the order, prompted by the President, produced by an agency, extended by Congress, and continued by a new Administration, could not be justified by the combined grant of the Commerce and Necessary and Proper clauses. In his decision, Judge Barker distorted precedent and denied reality, ostensibly because he feared a federal government empowered to determine when evicting poor people was fair. In fact, far from an unconstitutional overreach, the current order doesn’t go nearly far enough.
In March 2020, Congress passed, and President Trump signed, the Coronavirus Aid, Relief, and Economic Security (CARES) Act; the law banned evictions for non-payment at properties receiving certain federal funding or participating in federal programs through the end of July. In August, after the initial moratorium expired, President Trump issued an executive order calling for his administration to consider a new eviction ban. A month later, the Centers for Disease Control and Prevention (CDC), acting under longstanding statutory authority, issued a new ban, with the goal of preventing the spread of COVID-19 via displacement, doubling-up, and homelessness. In December, the order was extended by Congress in the appropriations bill; in January, soon after President Biden entered office, it was extended again by the CDC. In late March, the order was extended for a fourth time; it is now set to expire on June 30, 2021.
Under the order, it is a federal crime for any landlord to evict a qualified renter in any unit nationwide for failure to pay rent. To qualify, renters must certify that they are making a good faith effort to continue to pay, are unable to pay in full due to loss of income or extraordinary medical expenses, make less than $99,000 a year (or $198,000 for joint filers), and are unable to find affordable housing or to obtain government assistance. But, under the order, landlords can still start eviction proceedings for non-payment, and they can continue to evict residents for other reasons, including for engaging in criminal activity or violating non-rent-related lease terms. The order also does not halt accrual of back-rent; tenants are ultimately responsible for full repayment.
Soon after it was issued, landlords began to challenge the order. In Tennessee and Ohio, district courts found that the CDC was not authorized to issue the ban by a statute that empowered the Secretary of the Department of Health and Human Services to enact “measures as in his judgment may be necessary” to “prevent the . . . spread of communicable diseases” because it was limited to measures like those listed in the statute, including “inspection, fumigation, disinfection, sanitation, [and] pest extermination.” (The Sixth Circuit recently denied an emergency motion for a stay pending appeal of the Tennessee decision on similar grounds.) In Louisiana and Georgia, district courts found in the same statute a broader grant of authority, evincing an unambiguous choice by Congress “to defer to the ‘judgement’ of public health authorities about what measures they deem ‘necessary’ to prevent contagion.”
In Texas, Judge Barker sided with the landlords, holding that, however the statute was construed, the order exceeded the federal government’s power to “regulate interstate commerce and enact laws necessary and proper to that end.” To meet its burden, Judge Barker explained, the government needed to show that eviction was an activity that “substantially affect[s] interstate commerce.” He held it could not. First — and most importantly — he found that eviction was not an economic activity. Unlike in Wickard, a Depression-era case where the government was allowed to regulate homegrown wheat, this case did not involve a “fungible commodity” whose consumption predictably impacted an interstate market. Instead, like in Lopez, where the government was prevented from banning the possession of guns in school zones, the central activity was local and non-economic. Judge Barker explained: “Real estate is inherently local. Residential buildings do not move across state lines. And eviction is fundamentally the vindication of the property owner’s possessory interest.”
In Judge Barker’s view, three other factors also counseled against federal power to halt evictions. For one, the order contained no “jurisdictional element” confining its application to those evictions connected to interstate commerce. For another, the government could point to no “formal findings” that demonstrated the moratorium’s connection to “a broader regulation of commerce among the states.” Finally, any chain linking evictions and interstate commerce was attenuated: accepting the reality of interstate moves, for example, the government had not shown that eviction was a substantial cause of cross-border changes in address. Thus, he concluded, upholding the order would threaten “a breakdown in the demarcation of traditional areas of state concern” by empowering the government to regulate remedies used in state courts. Soon after, the government appealed; the case is pending in the Fifth Circuit.
Are evictions economic? As Justice Breyer noted nearly two decades ago, the line between economic and non-economic is difficult to draw, if not altogether illusory: “Does the local street corner mugger engage in ‘economic’ activity . . . when he mugs for money? Would evidence that desire for economic domination underlies many brutal crimes against women save [the federal Violence Against Women Act]?” Clearly, the Court has held, some non-economic activities, like discrimination in public accommodations, can be banned under the Commerce Clause, even if the impact on interstate commerce in any one case is miniscule. Indeed, Judge Barker noted that the federal government can still ban discrimination by landlords against tenants. In his view, then, the federal government can use its power under the Commerce Clause to prevent a landlord from refusing to rent to a Black woman because of her race or sex, but it can’t prevent the same landlord from kicking her out because of her loss in income — somehow, the former regulation is more economic than the latter.
Perhaps out of a desire to avoid such definitional difficulties, Judge Barker relied on precedent alone to determine the economic nature of evictions. In doing so, he engaged in some absurd analogizing: are evictions more like possession of guns in school zones or homegrown wheat? More troublingly, when confronted with on-point precedent — two cases where the Supreme Court had determined that “the rental of real estate is unquestionably” an activity that affects commerce — he brushed past it. In his view, neither case was relevant because both involved statutory, not constitutional, analysis and merely measured “effect,” not substantial effect. But the statute at issue in both cases was premised on the government’s desire “to exercise its full power under the Commerce Clause.” And, in the later case, the Court construed the statute to avoid a question on the constitutional limits of the Commerce Clause power by holding that it did not apply to owner-occupied homes, even as it reaffirmed its application to rental housing. Together, both present persuasive evidence that some regulation of renting is within the federal government’s power.
Even ignoring such precedent, Judge Barker’s decision remains hard to square with reality. The order can only be invoked because of economic hardship: a tenant must certify that she is unable to pay rent due to a loss in income or extraordinary medical expense. And the consequences are economic too: as the landlords make clear in their brief, their primary concern is an inability to get their money back or lease to a paying tenant. (Indeed, as the district court in Tennessee noted in an early denial of a preliminary injunction, “despite Plaintiffs’ creative [constitutional] framing,” landlords really just want to avoid monetary harm.) In short, a state court enforcing an eviction involving the order must determine whether — to borrow Judge Barker’s words — the “economic relationships between landlords and tenants” has broken down. If the court finds another, non-economic reason for the eviction, the order cannot apply.
As with much recent Commerce Clause jurisprudence, then, it’s hard to read Judge Barker’s decision as solely an exercise in disinterested judgement. In Morrison, Chief Justice Rehnquist feared federal regulation of sex and family; here, Judge Barker seems especially worried about socialism and states’ rights. As he emphasizes at the start and end of his opinion, “the government concedes that its view of constitutional authority would allow a federal eviction moratorium for any reason, including views on ‘fairness.’” In fact, if a federalized housing market is what Judge Barker fears, then he only need look around: the federal government could use its existing programs to reshape the market. For example, Congress could fund housing vouchers for everyone who qualifies for them, put slumlords out of business by building high quality public housing, or use federal backing of the mortgage market to make homeownership more accessible.
Put another way, Judge Barker’s decision can’t determine whether the federal government can continue to intervene in the national housing market, but only how. Here it’s worth recalling Justice Ginsburg’s prophetic prod to the Court’s conservatives in the first Affordable Care Act case: “Congress could have taken over the health-insurance market . . . . Such a program . . . would have left little, if any, room for private enterprise or the States. Instead . . . Congress enacted the ACA.” By trying to block one route for regulation, the Court may have ironically increased the appetite for a federal takeover, where collective demands for justice can overwhelm individual incentives for profit or state resistance to more humane healthcare. Should Terkel advance up the appellate ladder, the same could be true in housing.
Indeed, it wouldn’t be the first time the federal government acted to create a fairer housing market. One hundred years ago, faced with a crisis of public health, the Supreme Court upheld a federal law that allowed renters in Washington, D.C. to stay in their units after the end of their leases; dissenters decried the use of the Court and Constitution to “make way” for “Socialism.” During World War II, the Court upheld provisions of the Emergency Price Control Act that allowed the Administrator of the Office of Price Control to reduce rent-levels in “defense-areas” — a broad term that ultimately encompassed “practically the entire country” — so long as they were “generally fair and equitable;” the dissent lamented that “the present decision overrules . . . the Schechter case,” one of two invocations of the infamous non-delegation doctrine. To be sure, neither case provides a direct doctrinal precedent for the eviction ban: one involved the federal government’s police power over D.C.; the other, as Judge Barker noted, directly regulated prices during war. But, as Chief Justice Roberts has pointed out, “novelty is not necessarily fatal; there is a first time for everything.”
The truth is that that the federal government can — and should — fundamentally transform how poor people get and keep housing. Before the pandemic, 75% of Americans who qualified for housing vouchers couldn’t get them; homelessness was rising; a ban on the construction of new public housing remained in effect. Now, a year into a pandemic that’s killed more than half a million Americans and disrupted every part of the economy, half of Black and Hispanic renters and a quarter of white renters recently said that they have “slight or no confidence in their ability to make their next rent payment.” Despite the ban, evictions are again on the rise, landlords are struggling to pay mortgages, and renters are accumulating debt. These are national issues; they impact all Americans; they demand a collective response. In fact, the order and other pandemic-influenced efforts to increase housing funding suggest that things may be changing for the better. So, it may be best to forget about Judge Barker’s decision: what stands between Americans and a fair housing market is not a paucity of power, but only political will.