On Thursday, February 25, 2021, the United States District Court for the Eastern District of Texas issued a declaratory ruling holding that the current CDC eviction moratorium is unconstitutional. For details on the moratorium and applicable CDC order please see my prior article “The DHS – CDC September Surprise; The Order to Temporarily Halt Residential Evictions.”
The general terms of the CDC Moratorium originally appeared in the CARES Act in March of 2020. Upon expiration of the CARES Act moratorium at the end of July, 2020, and the pending expiration of state-imposed moratoria, the CDC September moratorium was issued. That September CDC moratorium was scheduled to expire on December 31, 2020. That December 31 date was extended through federal legislation to January 31, 2021. That January 31 date was again extended by the CDC, with support of the Biden Administration, under an extension that sought to keep the moratorium in place through March 31, 2021.
The Michigan Supreme Court, through administrative action, ruled that Michigan courts would honor the CDC moratorium on October 22, making it, effectively, the law of Michigan. See here.
However, Terkel et al., v. Centers for Disease Control and Prevention et al., No. 6:20-cv-00564 (E.D. Tex., Feb 25, 2021; Hon. J. Campbell Barker) held that the Constitution’s Commerce Clause did not support or justify the CDC moratorium. The court did not address state power to enact or impose such moratoriums, and indeed, cited a long history of such state prohibitions going back to at least the great Depression. The court did not expressly order any federal agency not to enforce the CDC moratorium because attorneys arguing the matter for the Department of Justice indicated on the record that the government would honor the declaration.
The federal government has appealed this ruling according to the Justice Department’s website: Department of Justice Issues Statement Announcing Decision to Appeal Terkel v. CDC | OPA | Department of Justice. The Justice Department is taking the position that this ruling only applies to the specific parties in that case and that it does not strike the CDC Moratorium nationwide. This declaratory judgment is not strictly binding precedent in Michigan courts but may be cited, of course, as persuasive authority. It is uncertain whether the Michigan Supreme Court will do anything to update its October, 2020 administrative order as a result.
If you are a landlord in Michigan and seek further guidance on this matter please contact Jared Roberts at Fraser Trebilcock.
Jared Roberts is a shareholder at Fraser Trebilcock who works in real estate litigation and transactions, among other areas of the law. Jared is Chair of the firm’s Real Estate department, and also “walks the walk” as a landlord and owner of residential rental properties and apartments in Downtown Lansing. He may be reached at jroberts@fraserlawfirm.com and (517) 482-0887.
