Millions Could Go Homeless Because Trump Judge Doesn't Think Rent Is An Economic Activity

Judge J. Campbell Barker has found the eviction moratorium to be unconstitutional.

Keeping people housed during a deadly pandemic saves lives and stops the spread of disease. That's why the federal government and most states have had eviction moratoriums at some point during the pandemic.

But on Thursday, with an opinion in Terkel v. CDC , Eastern District of Texas Judge J. Campbell Barker, threw a wrench into the feds' current eviction ban. Ruling for a bunch of landlords who were upset they couldn't make people homeless during the current public health crisis, the judge said the ban was unconstitutional and that the federal government does not have the "authority to order property owners not to evict specified tenants."

Courts in Georgia, Louisiana, and Tennessee have all upheld the moratorium. Eviction moratoriums have proven to be successful at stopping the spread of disease. One study even found that states lifting their eviction bans caused up to 433,700 unnecessary COVID-19 cases and 10,700 unnecessary deaths. BUT WON'T SOMEONE THINK OF THE LANDLORDS!

Let's talk about the commerce clause

Let me be as clear as I can possibly be: this opinion is a steaming pile of mastodon dung.

The CDC has the authority to "make and enforce such regulations as [...] are necessary to prevent the introduction, transmission, or spread of communicable diseases[,]" and has used that authority to issue federal bans on evictions during both the Trump and Biden administrations.

Represented by the right-wing Texas Public Policy Foundation and Southeastern Legal Foundation, a group of landlords filed Terkel v. CDC , seeking the right to kick people out of their homes and onto the street in the midst of one of the deadliest pandemics in known history.

And, amazingly, the landlords won by getting a federal judge to rule that paying and collecting rent are not economic activities.

So here's the deal. Thanks to the 10th Amendment , state governments have a lot more authority than the federal government to enact laws. States have a general "police power" to create and enforce laws having to do with safe, public health, and public welfare with their borders. The feds, by contrast, only have the specific powers given to them in the Constitution.

The Commerce Clause is one of the parts of the Constitution that gives specific powers to the federal government. Article 1, Section 8, Clause 3 gives the federal government the power "to regulate commerce with foreign nations, and among the several states, and with the Indian tribes."

Throughout the years, Commerce Clause has been used to enact sweeping civil rights legislation. The Civil Rights Act of 1964, which legally ended segregation and banned discrimination on the basis of race and sex, was enacted pursuant to the Commerce Clause — and the line of cases it created has been used to uphold important laws ever since.

The same year that the Civil Rights Act became law, SCOTUS upheld it in the landmark case  Katzenbach v. McClung  . A racist restaurant owner named Ollie McClung wanted to keep discriminating against Black people and made the case that this newfangled "law" shouldn't apply to him because he just runs a little ol' restaurant and isn't crossin' state lines or nothin'.

But the Court was like, "No, that's not how this works" and told Mr. McClung to stop discriminating or close up shop. Since then, the Commerce Clause has been used to enact everything from the Americans With Disabilities Act, to the federal minimum wage, to the Lilly Ledbetter Fair Pay Act.

Now, however, Judge Barker has decided that sometimes, economic activities don't actually "count" as economic activities. And when that happens, the Commerce Clause just can't help you. At its essence, the judge's main point seems to be that paying rent ... is not an "economic activity."

Judge Barker hangs his hat on the fact that "[r]eal estate is inherently local" and "[r]esidential buildings do not move across state lines." And, according to the esteemed judge, paying or receiving rent is not "economic in material respect." Because of this, he says, the Commerce Clause doesn't apply.

This is, obviously, utter tosh, but then again, so is a lot of our federal judiciary. If the Fifth Circuit or Supreme Court accepts this asinine argument on appeal, it won't just screw over millions of renters and exacerbate the current public health crisis. It could also be used to absolutely gut all of our federal civil rights laws.

What next?

The DOJ has already filed a notice of appeal with Just Barker, saying the feds will be appealing the order. Unfortunately, Texas is in the Fifth Circuit, a notoriously conservative court that is currently stacked 6-3 with conservatives. The chances of success at SCOTUS are also up in the air, with a 6-3 conservative majority that leaves even John Roberts unable to save us now.

And if Judge Barker's reasoning is adopted by higher courts, it could be open season on our federal civil rights laws.

Meanwhile, as many as 40 million people could lose their homes if eviction moratoriums go away — and as of last month , between 10 and 16 million renters were either behind on their rent or weren't sure they would be able to pay the next month's rent. Those people "are among the most vulnerable members of society" and are disproportionately "likely to be families of color." Some 42 percent of Black workers, 39 percent of Latinx workers, and 21 percent of white workers are worried about facing eviction or foreclosure this year.

Despite the Terkel ruling, however, right now the eviction moratorium remains in effect. The case wasn't a class action and the judge didn't issue a nationwide injunction, so right now, the ruling only applies to the landlords who were actually parties to the case. Then again, Judge Barker also said in the order that "Plaintiffs may, of course, seek an injunction should defend-ants threaten to depart from the declaratory judgment[,]" so I guess we'll see where this all ends up.

Acting Assistant Attorney General Brian M. Boynton, said in a press release announcing the appeal that,

The decision, however, does not extend beyond the particular plaintiffs in that case, and it does not prohibit the application of the CDC's eviction moratorium to other parties. For other landlords who rent to covered persons, the CDC's eviction moratorium remains in effect.

Diane Yentel, President and CEO of the National Low Income Housing Coalition, has also emphasized the eviction moratorium is still in effect.

🚨Tonight, a federal district court judge in TX ruled the CDC eviction moratorium unconstitutional. Renters, don’t… https: //t.co/WpCb8rV2DP

— Diane Yentel (@Diane Yentel) 1614305452.0 

While renters worry about staying in their homes, landlords and their lawyers are foaming at the mouth in anticipation of kicking people out of their homes as soon as they possibly can. But at least all of this has led to the creation of my new favorite genre of article: the puff piece begging us to, please, just THINK OF THE LANDLORDS!

If only someone had warned them sooner to stop eating so much avocado toast.

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