On February 25, 2021, a judge of the U.S. District Court for the Eastern District of Texas declared unconstitutional the current Centers for Disease Control and Prevention (CDC) order imposing a temporary moratorium on residential evictions (Moratorium) in the wake of the spread of the 2019 novel coronavirus disease (COVID-19). The Moratorium, intended to prevent the further spread of the virus, prohibits residential evictions of qualifying tenants through March 31, 2021. The judge ruled that the federal government's constitutional powers to regulate interstate commerce under the Commerce Clause (U.S. Const. art. 1, § 8, cl. 3) do not include the authority to order property owners not to evict specific tenants. The US Justice Department has announced an appeal of the ruling and a challenge to the ruling's scope.

The widespread economic fallout from the COVID-19 pandemic has created severe economic hardships for broad swaths of the American public. Job losses coupled with depleted personal financial reserves have put millions of tenants at imminent risk of eviction.

The Centers for Disease Control and Prevention (CDC) and the Department of Health and Human Services (HHS) ordered a temporary ban on residential evictions through December 31, 2020. The CDC extended the Moratorium through March 31, 2021 at President Biden's request. The Moratorium (among other things):

For more information on the history of the Moratorium, see Practice Note, Road Map to the Consolidated Appropriations Act, 2021: Real Estate Provisions, and Legal Updates, COVID-19: CDC Announces Four-Month Residential Eviction Moratorium and Year-End Appropriations Bill Provides Emergency Rental Assistance and Extension of Eviction Moratorium.

The ruling's single issue is the federal government's constitutional authority to enact a residential eviction moratorium. The judge sided with a group of property owners and landlords, ruling that real estate is inherently local and that although public health and safety are important governmental goals, the Moratorium is beyond the scope of the federal government's constitutional commerce power.

The judge's findings apply only to the federal government and its agencies. The judge specifically did not challenge the role of a state or local government to impose an eviction moratorium under a valid exercise of police power to protect life, health, and property.

For more information on state and local eviction moratoriums, see Practice Note, COVID-19: Commercial and Residential Tenant Eviction Moratoriums Select State and Local Laws Tracker (US).

The judge in this case entered a summary judgment and declaratory relief in favor of the plaintiffs. The Justice Department has already announced an appeal to the United States Court of Appeals for the Fifth Circuit.

The scope of the judge's opinion is also at issue. Although the judge did not issue injunctive relief in favor of the plaintiffs, his opinion states that the CDC should respect the declaratory judgment and stop enforcing of the Moratorium nationwide. However, the US Attorney's office has countered that the ruling only applies to the plaintiffs and that the Moratorium is otherwise still effective.

Counsel should review federal laws or regulations in conjunction with the laws and regulations of their specific jurisdictions in detail before commencing an eviction action.

For a continuously updated collection of resources addressing COVID-19, see Practical Law's Real Estate Global Coronavirus Toolkit.