National eviction moratorium ruled unconstitutional, but remains in place

Texas judge issued no injunction, says he hopes CDC will withdraw ban

U.S. District Judge John Campbell Barker, who was appointed by former President Donald Trump, ruled the eviction moratorium to be unconstitutional. (Getty, Texas Attorney General)
U.S. District Judge John Campbell Barker, who was appointed by former President Donald Trump, ruled the eviction moratorium to be unconstitutional. (Getty, Texas Attorney General)

A federal judge in Texas ruled the nationwide eviction moratorium unconstitutional Thursday but issued no injunction, saying he hopes the Centers for Disease Control and Prevention will withdraw the ban. The agency is not expected to do so.

The result, for the moment, is no change for tenants — who, as of last month, were an estimated $57 billion behind on rent payments — or for landlords.

“The federal government cannot say that it has ever before invoked its power over interstate commerce to impose a residential eviction moratorium,” wrote U.S. District Judge John Campbell Barker, who was appointed by former President Donald Trump. “The federal government has not claimed such a power at any point during our nation’s history until last year.”

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But federal judges in other lawsuits against the moratorium have upheld it.

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In September, two months before the presidential election, the CDC imposed the ban, calling it necessary to curb the spread of the coronavirus. Evictions often lead to tenants living with relatives or in congregate shelters, although some states and localities have relocated homeless people to hotels during the pandemic.

The landlords who brought the Texas case are represented by the Texas Public Policy Foundation and Southeastern Legal Foundation. The CDC is expected to appeal.

Shortly after taking office, President Joe Biden extended the nationwide moratorium through March.

Landlords have bristled at the federal and various statewide eviction bans, calling the threat of evictions necessary to get some tenants to pay rent. Some examples of tenants gaming the system have emerged.