In September 2020, as part of the federal government’s ongoing response to the COVID-19 pandemic, the Centers for Disease Control and Prevention (CDC), exercising its congressionally delegated authority, issued a temporary moratorium on evictions of certain tenants for nonpayment of rent.  The moratorium, which required tenants to meet certain criteria and submit a signed declaration of eligibility to their landlord, aimed specifically to limit the interstate spread of COVID-19 by protecting low-income individuals likely to be forced into homeless shelters and other congregate living settings.  Landlords in Texas challenged the federal moratorium in court, arguing the moratorium was an unconstitutional exercise of federal authority and that evictions should be allowed to resume.

The U.S. District Court for the Eastern District of Texas ruled in favor of the landlords and held that the moratorium exceeded the federal government’s powers under Article I’s Commerce Clause and Necessary and Proper Clause.  On appeal to the U.S. Court of Appeals for the Fifth Circuit, CAC filed an amicus curiae brief in support of the CDC, urging the Fifth Circuit to reverse the judgment of the court below.

Our brief argued that the district court’s crabbed view of the scope of Congress’s authority to address the COVID-19 crisis through a federal eviction moratorium was at odds with the Constitution’s text and history.  The Framers drafted the Constitution after nearly a decade of living under the failed Articles of Confederation, which created a central government so weak it was unable to coordinate responses to issues of national concern.  The Founders adopted Article I of the Constitution with the understanding that Congress would have the power to regulate all matters of national concern, especially those that could not be solved by any state alone.

To that end, the Commerce Clause, which authorizes Congress to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes,” empowers Congress to pass laws regarding not just trade and other economic transactions, but a broader set of interrelated activities and affairs that require a coordinated, centralized response.  Under the original meaning of the Commerce Clause, any issue that posed a collective action problem or spillover effects that could not be adequately addressed by a single state alone may be regulated by Congress.

Our brief then explained that the Necessary and Proper Clause, which gives Congress the power “[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers,” gives Congress considerable latitude in determining which laws are appropriate for carrying out its delegated duties, including the Commerce Clause power.

As a result, our brief argued that the eviction moratorium was constitutional, whether evaluated under the Commerce Clause alone, or the Commerce Clause and Necessary and Proper Clause together.  The Supreme Court has interpreted the Commerce Clause to permit Congress to regulate “activities that substantially affect interstate commerce.”  Our brief explained that the federal eviction moratorium fell squarely within that category, as evictions themselves contribute to the interstate spread of COVID-19, and the interstate spread of COVID-19 has massive spillover effects, devastating the national economy.  And while our brief argued that the moratorium should be upheld as a permissible exercise of Congress’s Commerce Clause authority, it also noted that the moratorium could be upheld as a measure that is “necessary and proper for carrying into execution” that power.  In sum, Supreme Court precedent, as well as constitutional text and history, all supported the conclusion that a federal eviction moratorium implemented to curb the spread of COVID-19 falls within the scope of the federal government’s power.

While this appeal was pending, other challenges to the eviction moratorium also progressed. In one case, Alabama Association of Realtors v. Department of Health and Human Services, the U.S. District Court for the District of Columbia held that a federal law did not grant the CDC the authority to implement the eviction moratorium and enjoined it. In a “shadow docket” ruling, the Supreme Court agreed and vacated a stay of the district court’s injunction, effectively ending the moratorium.

In light of that decision, the CDC moved to dismiss this appeal. The Fifth Circuit granted the motion and entered a judgment to that effect.