In the United States Court of Appeals For the Fifth Circuit
LAUREN TERKEL; PINEYWOODS ARCADIA HOME TEAM, LIMITED; LUFKIN CREEKSIDE APARTMENTS, LIMITED; LUFKIN CREEKSIDE APARTMENTS II, LIMITED; LAKERIDGE APARTMENTS, LIMITED; WEATHERFORD MEADOW VISTA APARTMENTS, L.P.; MACDONALD PROPERTY MANAGEMENT, L.L.C.,
CENTERS FOR DISEASE CONTROL AND PREVENTION; ROCHELLE P. WALENSKY, in her official capacity as Director of the Centers For Disease Control and Prevention; SHERRI A. BERGER, in her official capacity as Acting Chief of Staff for the Centers for Disease Control and Prevention; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; XAVIER BECERRA, Secretary, U.S. Department of Health and Human Services; UNITED STATES OF AMERICA,
On Appeal from the United States District Court for the Eastern District of Texas, 6:20-CV-564 (Hon. J. Campbell Barker)
Brief of The Cato Institute, Professor Randy E. Barnett, Reason Foundation, Individual Rights Foundation, and Independence Institute as Amici Curiae
In Support Of Plaintiffs-Appellees
INTRODUCTION AND SUMMARY OF THE ARGUMENT
During the pandemic, the CDC criminalized eviction. This unprecedented executive action was premised on an inferential house of cards: if people are evicted, they will live in closer quarters, potentially spreading COVID-19. To avoid this speculative problem, the government banned landlords nationwide from using legal processes to remove tenants. The government literally made it a crime to file a petition in state court. To the CDC, there is no real line “between what is truly national and what is truly local.” United States v. Lopez, 514 U.S. 549, 567–568 (1995) (citing NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 30 (1937)). But that line still exists, and it must be preserved.
A quarter-century after United States v. Lopez, the federal government still has not learned its lesson. The Justice Department continues to advocate for the same limitless conception of federal power that it advanced in this Court a generation ago. United States v. Lopez, 2 F.3d 1342, 1367 (5th Cir. 1993). The CDC’s attenuated reasoning, which “pile[s] inference upon inference,” mirrors the federal government’s losing argument in Lopez. 514 U.S. at 567.
The eviction moratorium is unconstitutional. First, eviction is not an “economic” activity. Cf. United States v. Morrison, 529 U.S. 598, 613 (2000). It is a remedy ordered by a judge, not a fungible commodity that can be sold, exchanged, or bartered. Cf. Gonzales v. Raich, 545 U.S. 1, 18 (2005) (analogizing the interstate market for marijuana to that for wheat in Wickard v. Filburn, 317 U.S. 111 (1942)). It is thus irrelevant whether the legal process of eviction, in the aggregate, has a substantial effect on interstate commerce. Lopez, 514 U.S. at 560. Second, the mortarium is not “an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate [noneconomic] activity were regulated.” Id. at 561. Third, even if this order is “necessary” to stop the spread of COVID-19, it is not a “proper” exercise of federal power. The moratorium denies access to state courts, intrudes on state judiciaries, and distorts political accountability. It should meet the same fate as the Gun-Free School Zones Act; states, not the federal government, retain the police power over local affairs.