Gallet Dreyer & Berkey, LLP | I Read that the Residential Eviction Moratorium is Unconstitutional...Not So Fast
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  • I Read that the Residential Eviction Moratorium is Unconstitutional...Not So Fast
    03/01/2021
    You may have seen news reports on CNN and other news outlets that a federal judge has declared the Center for Disease Control’s residential eviction moratorium to be unconstitutional. In September 2020, and recently extended, the CDC ordered a halt to all residential evictions nationwide because of the coronavirus pandemic, but the court negated the effect of that order. The court said that the CDC, part of the executive branch of the federal government, overstepped its constitutional authority. However, neither the court’s order nor the inevitable appeal filed two days later, have any effect on New York landlords and tenants.

    Federal Judge J. Campbell Barker, from the United States District Court for the Eastern District of Texas, held that the CDC moratorium was unconstitutional. He said nothing about the New York eviction moratoriums issued by Governor Cuomo, the New York State legislature, or any other government authority in New York. Judge Barker only decided the narrow question of whether the federal government has the constitutional authority to prohibit evictions. The Judge specifically said that the lawsuit “does not question that the States may regulate residential evictions and foreclosures, as they have long done.”

    Federal courts have long said that what we lawyers refer to as the exercise of the “police power,” which is the right of the government to protect the lives, health, and general welfare of the people, is a power that is exercised predominantly by the states, not by the federal government. The CDC publicly claimed that the eviction moratorium was necessary to avoid too many people spreading the Coronavirus by living in crowded shelters or by moving from place to place when they should be staying home. However, the court did not find that basis for the moratorium to come within the constitutional power to regulate “interstate commerce.”

    Thus, if you are a landlord wondering whether this decision might allow you to evict nonpaying tenants in New York, it is too early to jump for joy. If you are a tenant worried about a nonpayment eviction because you lost your job, you can unpack your suitcase and stay in your home, at least for now. We anticipate that there will be future court action on whether the New York moratoriums will be enforced, and there may be more legislation on how long they will last, so please stay tuned. If you want to read our blog on the residential tenant moratorium in New York, you can find it here. If you have specific questions about actions you can take to protect your rights as a landlord or a tenant under a lease, contact your attorney at Gallet Dreyer & Berkey, LLP or the author of this blog.
    ATTORNEY: Jay L. Hack