Judge Slaps CDC: ‘Although COVID-19 Pandemic Persists, So Does the Constitution’

Written by Kyle Becker

The Centers for Disease Control attempted to exert unconstitutional jurisdiction and was slapped down by a Trump-appointed judge on Thursday. The judge’s retort to the CDC: “Although the COVID-19 pandemic persists, so does the Constitution.”

U.S. District Court Judge John Barker, a federal judge in Texas, ruled on behalf of a group of landlords and property managers who had argued that the CDC was exceeding its authority, the Hill reported.

In the legal case Lauren Terkel, et al. vs. Centers for Disease Control and Prevention, et. al. the issue at hand is whether the CDC could enforce an eviction moratorium against landlords.

“This lawsuit presents the question whether the federal government has authority to order property owners not to evict specified tenants,” the case summary states. “Plaintiffs argue that this authority is not among the limited powers granted to the federal government in Article I of the Constitution, and thus the decision whether to enact an eviction moratorium rests with a given State. Disagreeing, the federal government argues that a na-tionwide eviction moratorium is within Article I’s grant of federal authority to regulate commerce among the States.”

The case focused explicity on the federal government’s “police powers,” and did not question that states could enforce  their own moratoriums on evictions.

“This lawsuit does not question that the States may regulate residential evictions and foreclosures, as they have long done…” Judge Barker wrote. “But while ‘[t]he States have broad authority to enact leg-islation for the public good—what we have often called a ‘po-lice power’—'[t]he Federal Government, by contrast, has no such authority[.]'”

Judge Barker ruled, indeed, that the federal government did not have such power. But he went beyond the headlines to eviscerate the federal government’s overreach based on the COVID pandemic.

“The federal government cannot say that it has ever before invoked its power over interstate commerce to impose a residential eviction moratorium,” he wrote. “It did not do so during the deadly Spanish Flu pandemic. Nor did it invoke such a power during the exigencies of the Great Depression. The federal government has not claimed such a power at any point during our Nation’s history until last year.”

“And the government’s claim of constitutional authority is broad,” he added. “The government admits that nothing about its constitutional argument turns on the current pandemic…”

The judge was sure to press the government about its rationale about suspending residential evictions. Summarizing the argument, the CDC’s case boiled down to ‘because we wanted to.’

“The federal government thus claims authority to suspend residential evictions for any reason, including an agency’s views on ‘fairness,'” Barker wrote.

Judge Barker cites the Lopez case to make a general inference about the federal government’s police powers.

“As to the broader implications of the government’s arguments, they too suggest a breakdown in the demarcation of traditional areas of state concern,” he wrote. “While valid federal law is of course supreme, a court assessing a law’s validity under the Commerce Clause may not ‘pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States.'”

“Because the remaining plaintiffs are entitled to judgment as a matter of law, the court enters summary judgment granting declaratory relief in their favor,” Judge Barker decided. “Although the COVID-19 pandemic persists, so does the Constitution. Declaring the scope of constitutional power is thus proper relief, and a fed-eral court with jurisdiction has a ‘virtually unflagging obligation . . . to exercise that authority’ to resolve a case before it.”

The judge thus rendered his ruling: Enforcing the Constitution is the “remedy.”

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