By Jack Queen

Law360 (October 23, 2020, 5:11 PM EDT) -- Texas landlords who say they are owed thousands of dollars in unpaid rent have asked a federal judge to block a nationwide eviction freeze, saying the moratorium does nothing to prevent the spread of COVID-19 and goes beyond the federal government's powers.

The landlords — one individual and six companies — said Thursday that the U.S. Centers for Disease Control and Prevention's four-month eviction moratorium violates their property rights on the "pretext" that exercising them will contribute to the spread of the coronavirus. They also argue the federal government lacks this power to begin with.

"Even if Congress itself had passed a law attempting to impose a nationwide moratorium on the eviction of residential tenants, such measures would reach far beyond the legitimate scope of federal power," they say. The landlords are asking a judge to block enforcement of the order immediately.

The CDC's September order has drawn multiple legal challenges alleging the agency overstepped its authority under the Administrative Procedure Act, among other arguments. The Texas suit takes the matter a step further, arguing that not even federal lawmakers could block evictions through legislation.

An attorney for the landlords, Robert Henneke of the Texas Public Policy Foundation, an Austin-based conservative think tank, said this element of the suit makes it unique, noting that its administrative procedure claims are merely an entry point for the constitutional broadside.

"We're going to the heart of the matter and saying that however this is packaged, it's beyond the limited and enumerated powers of the federal government under the Constitution," he told Law360 on Friday.

The moratorium is the federal government's second stab at preventing evictions amid the pandemic. Under the Coronavirus Aid, Relief and Economic Security Act, Congress imposed a limited freeze on evictions for residents of properties with federally backed mortgages and participants in federal housing programs. The ban expired on July 24.

The CDC stepped in on Sept. 1, prohibiting evictions through at least the end of the year. The CDC's ban is more sweeping and applies to all tenants, regardless of where they live, as long as they meet certain criteria. Those are tied to the precariousness of their situation and ability to pay, among other factors. 

The lead plaintiff in the Texas suit, Lauren Terkel, says a tenant at her Tyler, Texas, property has fallen two months behind on rent and owes her $1,700. When Terkel tried to evict him, he came to court with a declaration and a copy of the CDC order. A judge blocked the eviction, she says.

"Now she's forced to bear the cost of property taxes and maintenance and has to maintain an unlawful person on her property," Henneke said, adding that the tenant does not have COVID-19 and is "just a guy who doesn't pay rent."

The tenant, who is not named in the suit and could not be reached for comment Friday, submitted a sworn declaration to the local court saying he met the CDC's criteria for eviction immunity. Those include substantial loss of income and risk of homelessness if evicted. He said he earns less than $99,000 a year and made his best efforts to pay partial rent or obtain government assistance, according to a copy of his declaration attached to the suit. 

The CDC has couched its eviction freeze in public health terms, saying people who are booted from their homes are likely to move around, in some cases crossing state lines. This could increase transmission rates and further spread the contagion, according to the agency.

Terkel and the other landlords, including real estate limited partnerships in East Texas, argue this is a thin justification. Their suit claims the CDC has produced no evidence for this claim, nor can it invoke a federal ban on the interstate movement of infected people to justify its order.

"The order claims that because some individuals who are evicted from their homes may move to another state, 'mass evictions would likely increase the interstate spread of COVID-19,'" the landlords say. "However, the order provides no findings linking the interstate spread of COVID-19 to evictions."

Even if the CDC could justify the ban on public health grounds, the landlords argue that the federal government has no power to enforce it under either the Commerce or Necessary and Proper clauses of the Constitution. Those allow the government to regulate interstate commerce and impose laws deemed necessary to carry out its enumerated powers.

The power to block evictions, the plaintiffs argue, falls exclusively under the policing powers of state governments.

"The eviction moratorium order… expands federal authority into areas of traditional state power by regulating private property rights, private contracts, and the right to invoke traditional state legal proceedings," according to the complaint.

The CDC did not immediately respond to a request for comment Friday.

The landlords are represented by Robert Henneke, Chance Weldon and Ryan D. Walters of the Texas Policy Foundation and Kimberly S. Hermann and Celia Howard O'Leary of the Southeastern Legal Foundation.

Counsel information for the CDC was not available Friday.

The case is Terkel et al. v. Centers for Disease Control and Prevention et al., case number 6:20-cv-00564, in U.S. District Court for the Eastern District of Texas.

--Editing by Jill Coffey.

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