Justice Department to appeal judge’s order on eviction moratorium

The Justice Department said Saturday it will appeal a judge’s ruling that found the federal government’s eviction moratorium to be unconstitutional.

Prosecutors filed a notice in the case Saturday evening, saying they were appealing the matter to the U.S. Court of Appeals for the Fifth Circuit.

U.S. District Judge J. Campbell Barker on Thursday ruled that the Centers for Disease Control and Prevention had overstepped its authority and that the moratorium was unlawful.

“Although the COVID-19 pandemic persists, so does the Constitution,” the judge wrote.

The CDC eviction moratorium was signed in September by President Trump and extended by President Biden until March 31.

Barker, who was nominated by Trump in 2018 to serve in the Eastern District of Texas, stopped short of issuing an injunction in the case. Several property owners had brought the litigation, arguing that the federal government didn’t have the legal authority to stop evictions.

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

State and local governments had approved eviction moratoriums early in the pandemic for many renters, but many of those protections have expired.

To be eligible for protection, renters must have income of $99,000 or less ($198,000 or less for couples filing jointly); demonstrate that they’ve sought government help to pay rent; declare that they can’t pay because of COVID-19 hardships; and affirm that they are likely to become homeless if evicted.