CLARK BARS UPDATE - FEBRUARY 26th 2021
Clark & Walker, P.C. - Attorneys at Law
Date: February 26, 2021
COVID-19 - CDC ORDER TEMPORARILY HALTING CERTAIN RESIDENTIAL EVICTIONS DECLARED UNCONSTITUTIONAL
by: Christopher R. Walker, Esq.
For nearly five months owners and operators of residential rental properties have had to deal with the unprecedented and arguably unconstitutional actions taken by Congress and the Centers for Disease Control and Prevention that sought to limit the right to remove tenants from rental units who were delinquent in their rental obligations. The Biden Administration had proposed to extend the moratorium beyond its current expiration date of March 31, 2021, proposing a possible extension through September 30, 2021 in its current stimulus package currently being considered by Congress. For many, an extension of this moratorium through September 2021 would have caused financial ruin. Fortunately, today, relief is in sight.
In a case filed before the United States District Court for the Eastern District of Texas Judge John Campbell Barker has declared the acts taken by the Centers for Disease Control and Prevention to have been unlawful. Judge Barker expressly found that the Centers for Disease Control and Prevention exceeded its authority by enacting the moratorium and further held that Congress itself could not enact such a moratorium as such an act would encroach on the rights of the states to police their people, a right enshrined in the constitution. As stated by the court, “[a]lthough the COVID-19 pandemic persists, so does the Constitution.”
Although this case was decided in Texas the implications are far reaching. Judge Barker, in his decision, ruled the moratorium to be contrary to the constitutional power of the federal government. In so ruling, Judge Barker cited 5 U.S.C. § 706(2)(B) which not only allowed Judge Barker to rule the moratorium to be unconstitutional but also to
set aside the Centers for Disease Control and Prevention’s order. As such, the order, as promulgated by the Centers for Disease Control and Prevention, is no more. While the Department of Justice will invariably appeal this decision it remains unknown if they will be successful in blocking Judge Barker’s ruling from being enforced while their appeal is pending, thereby potentially leaving landlords free to both commence legal actions to remove tenants for any violation of the lease and recover possession of their rental properties through the execution of a writ of restitution.
Landlords in Arizona should be elated by this news but should know that the effects of this ruling will not be immediately recognized by the courts in Arizona. Much work remains needed to change the Administrative Orders and correct the past eight months’ of rules and procedural changes that have changed the face of evictions in Arizona and unduly burdened the eviction process. This Firm will continue to work tirelessly with the Arizona Supreme Court to update the administrative order and see that the ruling from Judge Barker results in Arizona trial courts no longer recognizing the validity of the Centers for Disease Control and Prevention’s moratorium on residential evictions.
If you have any questions or concerns please contact our office.
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