U.S. District Judge John Barker argued that Congress lacked the authority to give the CDC power to halt evictions, and that the moratorium threatened to impinge upon landlords’ rights under state law. The DOJ filed a notice on Saturday to appeal the ruling.

A federal judge in Texas ruled the Centers for Disease Control and Prevention’s (CDC) eviction moratorium unconstitutional on Thursday.

U.S. District Judge John Barker, who was originally appointed by President Trump in the Eastern District of Texas in 2018, did not go so far as to issue an injunction on the moratorium, but stated that he expected the public health agency to withdraw the ban.

“The federal government cannot say that it has ever before invoked its power over interstate commerce to impose a residential eviction moratorium,” Judge Barker 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.”

For now, there is no change for tenants or landlords under the moratorium. The CDC issued the moratorium in September, and it was originally set to expire at the end of December. The order was then extended through the end of January through a provision in the second stimulus package, and then the Biden administration, upon entering office, extended the order further through the end of March.

The ruling comes on the heels of a group of Texas landlords and property owners suing the CDC and the Department of Health and Human Services in October over the moratorium, stating the power to halt evictions was outside of the power of the federal government.

Barker argued the same, writing that Congress likewise lacked the authority to give the CDC power to halt evictions, and that the moratorium threatened to impinge upon landlords’ rights under state law. The plaintiffs were represented by the Texas Public Policy Foundation and Southeastern Legal Foundation, both conservative legal groups.

“The CDC attempted to use COVID-19 as an opportunity to grab power and the court rightfully corrected this egregious overreach,” Robert Henneke, general counsel for the Texas Public Policy Foundation, said in a statement.

The Department of Justice (DOJ) filed a notice on Saturday evening to appeal Judge Barker’s ruling, the Associated Press reported on Sunday.

“The CDC’s eviction moratorium, which Congress extended last December, protects many renters who cannot make their monthly payments due to job loss or health care expenses,” Brian Boynton, acting assistant attorney general in charge of the DOJ’s civil division, said in a statement. “By preventing people from becoming homeless or having to move into more crowded housing, the moratorium helps slow the spread of COVID-19.”

Roughly 9.2 million renters were behind on rent and at risk of eviction as of February 15, according to a Census Bureau Household Pulse survey. About 15 million renters reported they had little to no confidence they would be able to pay their rent in March.

Email Lillian Dickerson

Show Comments Hide Comments
Sign up for Inman’s Morning Headlines
What you need to know to start your day with all the latest industry developments
By submitting your email address, you agree to receive marketing emails from Inman.
Thank you for subscribing to Morning Headlines.
Back to top
Only 3 days left to register for Inman Connect Las Vegas before prices go up! Don't miss the premier event for real estate pros.Register Now ×
Limited Time Offer: Get 1 year of Inman Select for $199SUBSCRIBE×
Log in
If you created your account with Google or Facebook
Don't have an account?
Forgot your password?
No Problem

Simply enter the email address you used to create your account and click "Reset Password". You will receive additional instructions via email.

Forgot your username? If so please contact customer support at (510) 658-9252

Password Reset Confirmation

Password Reset Instructions have been sent to

Subscribe to The Weekender
Get the week's leading headlines delivered straight to your inbox.
Top headlines from around the real estate industry. Breaking news as it happens.
15 stories covering tech, special reports, video and opinion.
Unique features from hacker profiles to portal watch and video interviews.
Unique features from hacker profiles to portal watch and video interviews.
It looks like you’re already a Select Member!
To subscribe to exclusive newsletters, visit your email preferences in the account settings.
Up-to-the-minute news and interviews in your inbox, ticket discounts for Inman events and more
1-Step CheckoutPay with a credit card
By continuing, you agree to Inman’s Terms of Use and Privacy Policy.

You will be charged . Your subscription will automatically renew for on . For more details on our payment terms and how to cancel, click here.

Interested in a group subscription?
Finish setting up your subscription