Comment: Ruling to allow evictions an attack on federal power

By Leah Litman / Special To The Washington Post

A federal judge appointed by President Trump struck down the federal government’s moratorium on evictions last Thursday; a policy begun under the Trump administration and part of the emergency response to the coronavirus pandemic.

The decision’s fate is unclear: The government has announced that it is will take the case to the U.S. Court of Appeals. But the Texas judge’s aggressive action is a major warning of things to come, underscoring just how far Trump judges will go to thwart ambitious government action, even in the midst of national crises.

The eviction moratorium — which, as of now, will remain in place as the case proceeds — protects an estimated 40 million people from being removed from their homes. Yet in Terkel v. Centers for Disease Control and Prevention, Judge J. Campbell Barker held that the federal government lacked the power to regulate evictions under the Constitution. His reasoning was highly idiosyncratic. The Constitution’s interstate commerce clause grants the federal government the power to regulate commerce among the states. After the New Deal, courts interpreted the clause to confer extremely broad powers on Congress. Conservative judges have tried to rein in those powers in recent decades, but the Supreme Court has continued to maintain that the federal government can regulate economic activities that “substantially affect” commerce.

Barker concluded, however, that evictions do not qualify as economic activity; full stop. He contended that evictions concern only the right to remain on a property, involving mere “possession of property” and no commercial exchange. But that argument is quite strained: Evictions are the remedy for breaches of commercial agreements between landlords and tenants. A tenant agrees to pay a landlord and in exchange, the landlord agrees not to evict the tenant. Evictions are what happens when a tenant fails to pay a landlord under a contract: They are inextricably bound up with economic transactions. Yet the judge insisted that evictions were somehow distinct from economic activities.

If that argument sounds thin, it is. But in some ways, Barker is taking his cues from the Supreme Court, which has parsed the commerce clause in an increasingly pinched way in recent years. Consider that in the Supreme Court’s opinion in NFIB v. Sebelius, five justices concluded that Congress lacked the authority to impose a penalty on people who failed to purchase health insurance. The court reasoned that Congress could not regulate economic “inactivity,” that is, the decision to forego purchasing health insurance. (The court ultimately said the penalty could be justified if it was considered to be a tax, and Congress eliminated the penalty in 2017.)

But the eviction case goes even further in curbing Congress’s commerce-clause powers. In fact, if widely embraced, the logic of the opinion could destabilize a considerable swath of federal law. The Fair Housing Act, for example, prohibits discrimination in the housing market. Under the district court’s theory, that statute may be unconstitutional; at least insofar as it bars discriminatory evictions. Moreover, in Russell v. United States, the Supreme Court upheld, on commerce clause grounds, a federal statute that prohibited arson of a rental property. But if evictions from rental properties do not count as economic activity, then setting fire to a rental property probably doesn’t, either.

The opinion’s logic could reverberate well beyond the housing market. To determine the scope of the government’s regulatory power, Barker focused exclusively on activities that involve payment (rent, for example), and set aside all of the activities related to that payment (including whether one can be evicted). Under the current understanding of the commerce clause, Congress can prohibit hotels and restaurants across the United States from refusing to serve customers on the basis of race. But under the district court’s theory of economic activity, a refusal of service would likely not count as something that Washington has any say over (since a refusal of service, like an eviction, concerns the right to be on the premises rather than an exchange of money).

On the one hand, the decision invalidating the eviction moratorium should not create a panic, because this one decision will not resolve the matter; an appeal, naturally, is already underway. Yet on the other hand, it is far from clear how many of the judges that were nominated by Trump will embrace the kind of legal gymnastics that the district judge did in this case to move the law in the preferred direction: toward curbing federal power.

The eviction decision will be appealed to Fifth Circuit Appeals Court, which has 16 active judges, six of whom were appointed by Trump. (And the judges nominated by Trump will have influence on the judiciary for decades to come. Barker was selected when he was 37 years old.)

Then there is the Supreme Court, which could hear the case after the Fifth Circuit. That court includes three justices who embraced the distinction between economic activity and inactivity in the challenge to the Affordable Care Act. And it now also includes three justices who were nominated by Trump: Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. And Barrett has written that she agreed with the original constitutional challenge to the ACA.

The court has already signaled that it is willing to prevent governments from taking aggressive action against the pandemic, invalidating several public health measures on religious liberty grounds. Now a district judge has invited the court to block efforts to ameliorate the economic harm of the pandemic. If the justices take up that invitation, the federal government would be stripped of the power to respond to extraordinary national crises. And we will have witnessed a quiet revolution — for the worse — in American constitutional law.

Leah Litman is an assistant professor of law at the University of Michigan and host of the Supreme Court podcast “Strict Scrutiny.”