Defendants' Memorandum in Response to November 20 Order — Terkel v. CDC (E.D. Tex.)

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U.S. District Court for the Eastern District of Texas · No. 6:20-cv-00564-JCB · Doc. 23 · 2020-12-04 · Docket on CourtListener

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IN THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF TEXAS 
TYLER DIVISION 
 
LAUREN TERKEL, et al., 
 
      Plaintiffs, 
 
v. 
 
CENTERS FOR DISEASE CONTROL AND 
PREVENTION, et al., 
 
      Defendants. 
 
 
 
 
 Case No. 6:20-cv-564-JCB 
 
  
 
 
 
 
DEFENDANTS’ MEMORANDUM IN RESPONSE  
TO THE COURT’S NOVEMBER 20, 2020 ORDER
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TABLE OF CONTENTS 
 
INTRODUCTION ........................................................................................................................................... 1 
ARGUMENT..................................................................................................................................................... 2 
I. 
If the Court Chooses to Rule upon the Request for Declaratory Judgment Now, It Should 
Declare that the Order Is a Constitutional Exercise of Federal Authority. ................................. 2 
A. 
The Order Is Plainly Authorized under the Commerce Clause. ..................................... 3 
B. 
Alternatively, the Order Is a “Necessary” and “Proper” Means of Achieving a 
Legitimate End under the Commerce Power. .................................................................... 8 
III. 
The Order Precludes Evictions for Nonpayment of Rent........................................................... 11 
CONCLUSION ............................................................................................................................................... 13 
 
 
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TABLE OF AUTHORITIES 
Cases 
Adames v. Sheahan, 
909 N.E. 2d 742 (Ill. 2009)........................................................................................................................... 7 
Anthony v. State, 
209 S.W. 3d 296 (Tex. Crim. App. 2006) ................................................................................................. 12 
City of New York v. Beretta U.S.A. Corp., 
524 F.3d 384 (2d Cir. 2008) ......................................................................................................................... 7 
Daniels v. State, 
633 S.W. 2d 899 (Tex. Crim. App. 1982) ................................................................................................. 12 
District of Columbia v. Beretta U.S.A. Corp., 
940 A.2d 163 (D.C. 2008) ............................................................................................................................ 7 
GDF Realty Investments v. Norton, 
326 F.3d 622 (5th Cir. 2003) ........................................................................................................................ 6 
Gonzalez v. Raich, 
545 U.S. 1 (2005) .............................................................................................................................. 4, 5, 8, 9 
Gregory v. Ashcroft, 
501 U.S. 452 (1991) ..................................................................................................................................... 10 
Groome Resources Ltd. v. Parish of Jefferson, 
234 F.3d 192 (5th Cir. 2000) ........................................................................................................... 3, 4, 5, 6 
Gustafson v. Springfield, Inc., 
2020 WL 5755493 (Pa. App. Sept. 28, 2020) ....................................................................................... 6, 7 
Ileto v. Glock, Inc., 
565 F.3d 1126 (9th Cir. 2009) ...................................................................................................................... 7 
Jones v. United States, 
529 U.S. 848 (2000) ....................................................................................................................................... 4 
NFIB v. Sebelius, 
567 U.S. 519 (2012) ................................................................................................................................ 8, 10 
Russell v. United States, 
471 U.S. 858 (1985) .................................................................................................................................. 3, 4 
Taylor v. United States, 
136 S. Ct. 2074 (2016) ................................................................................................................................... 4 
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United States v. Alberts, 
59 F. Supp. 298 (E.D. Wash. 1945) .......................................................................................................... 10 
United States v. Bailey, 
111 F.3d 1229 (5th Cir. 1997) .................................................................................................................... 12 
United States v. Comstock, 
560 U.S. 126 (2010) ................................................................................................................................ 9, 10 
United States v. Lopez, 
514 U.S. 549 (1995) .................................................................................................................................. 3, 4 
United States v. Morrison, 
529 U.S. 598 (2000) .................................................................................................................................. 3, 4 
United States v. Whaley, 
577 F.3d 254 (5th Cir. 2009) ........................................................................................................................ 9 
Whole Woman’s Health v. Smith, 
896 F.3d 362 (5th Cir. 2018) ........................................................................................................................ 2 
Wickard v. Filburn, 
317 U.S. 111 (1942) ....................................................................................................................................... 5 
Woods-Drake v. Lundy, 
667 F.2d 1198 (5th Cir. 1982) ...................................................................................................................... 9 
Statutes 
42 U.S.C. § 264 ................................................................................................................................................. 12 
50 U.S.C. § 3951 ............................................................................................................................................... 10 
Pub. L. No. 116-136, 134 Stat. 281 (Mar. 27, 2020) ..................................................................................... 9 
Texas Penal Code § 30.05 ........................................................................................................................ 11, 12 
Rules 
Federal Rule of Civil Procedure 56(f) ........................................................................................................ 1, 2 
Regulations 
85 Fed. Reg. 55292 (Sept. 4, 2020) ......................................................................................................... 11, 12 
 
 
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INTRODUCTION 
 
 
After briefing and argument on Plaintiffs’ motion for a preliminary injunction, the Court 
issued an order stating that it would consider granting summary judgment on Plaintiffs’ request for 
declaratory relief.  See Order, ECF No. 18.  The Court directed the parties to “provide any information 
that would counsel against considering or granting summary judgment.”  Id. at 2.   
 
As an initial matter, although Federal Rule of Civil Procedure 56(f) permits a court to consider 
summary judgment sua sponte, there are good reasons for the Court to decline to exercise that 
discretion here.  Plaintiffs chose to file a motion for preliminary injunction and, as Defendants have 
shown, they failed to carry their burden to meet any of the four elements required to warrant expedited 
relief.  See Defs.’ Mem. in Opp. to Pls.’ Mot. for Prelim. Inj. (Defs.’ Mem.), ECF No. 11.  There is no 
cause for the Court to relieve them of those burdens and hastily consider a constitutional question, 
particularly where numerous other federal courts have found that the equities and public interest firmly 
counsel against enjoining regulations designed to prevent the spread of COVID-19.  See id. at 27–29. 
 
If the Court does decide to rule upon the request for declaratory judgment at this stage, 
however, it should find that the CDC Order is a valid exercise of the Commerce Clause authority.  See 
Defs.’ Mem. 14–27.  As Defendants demonstrated in their opposition to Plaintiffs’ motion for 
preliminary injunction, and as explained further below, the Order falls squarely within the commerce 
power under binding Supreme Court and Fifth Circuit precedent.  Further, even if the commerce 
power alone did not directly permit the regulation at issue here—and it does—the Necessary and 
Proper Clause readily authorizes it.   
 
Finally, in response to the Court’s questions at argument, Defendants clarify the CDC’s view 
that remaining on a rental property notwithstanding failure to pay rent in full is not a valid basis for 
eviction under the criminal activity exception to the Order based on the offense of criminal trespass 
as set forth in the Texas Penal Code. 
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ARGUMENT 
I. 
If the Court Chooses to Rule upon the Request for Declaratory Judgment Now, It 
Should Declare that the Order Is a Constitutional Exercise of Federal Authority. 
 
 
Although Rule 56(f) authorizes the Court to consider summary judgment sua sponte after 
providing notice and a reasonable time to respond, the sounder course here would be for the Court 
to resolve the pending motion for preliminary injunction rather than considering summary 
judgment—which Plaintiffs could have moved for, but did not.1  If the Court finds that, as Defendants 
demonstrated in their opposition, Plaintiffs have failed to meet any one element of the test for 
preliminary injunction, it should join the multiple other federal courts that have declined to 
preliminarily enjoin the Order.  See Defs.’ Mem. 9–10.  And if Plaintiffs have not fulfilled their burden 
to demonstrate that expedited relief is appropriate, there is no reason for the Court to exercise its 
discretion in pursuit of the hurried resolution of a constitutional question.2  This is particularly true 
given that the Order at issue is set to expire at the end of the month, and it is presently unknown 
whether it will be renewed or, if so, whether any renewed Order will include material changes that 
bear upon the resolution of Plaintiffs’ Commerce Clause challenge.   
                                                 
1 Defendants note that Plaintiffs have not submitted a statement of undisputed material facts, as 
required by the local rules, see Local R. CV-56(a), and that Rule 56(f) permits a court to consider 
summary judgment on its own “after identifying for the parties material facts that may not be genuinely 
in dispute,” Fed. R. Civ. P. 56(f)(3).  Accordingly, to the extent the Court decides to consider summary 
judgment at this juncture, and in doing so relies on any findings or other statements in the CDC Order, 
it must deem those findings and statements uncontroverted.  To the extent that Plaintiffs rely on other 
facts, which they have not identified under the local rules, Defendants do not concede that such facts 
are either material or undisputed. 
 
2 It should be noted that there are pending challenges to the Order in five other federal courts that 
raise statutory and procedural claims, two of which have already moved past the preliminary injunction 
stage.  See Brown v. Azar, No. 20-3702 (N.D. Ga.); Tiger Lily LLC v. U.S. Dep’t of Housing & Urban Dev., 
No. 20-2692 (W.D. Tenn.).  Although in Brown the parties have requested a stay of further litigation 
pending appeal, see Brown, ECF No. 57, a summary judgment briefing schedule has been set in Tiger 
Lily, see Tiger Lily, ECF No. 76.  Because Plaintiffs here chose to raise only a constitutional claim, 
providing an opportunity for the courts in the earlier-filed suits to rule upon the statutory and 
procedural questions raised therein first would be consistent with constitutional avoidance principles.  
See, e.g., Whole Woman’s Health v. Smith, 896 F.3d 362, 370 (5th Cir. 2018). 
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If, however, the Court converts the preliminary injunction motion into one for summary 
judgment, it should declare that the Order is a valid exercise of the commerce power.  It is undisputed 
that the federal government has the authority to regulate “activities that substantially affect interstate 
commerce.”  United States v. Lopez, 514 U.S. 549, 558–59 (1995); see also Pls.’ Mem. in Supp. of Mot. 
for Prelim. Inj. (Pls.’ Mem.) 10, ECF No. 3.  The parties disagree as to whether the Commerce Clause 
alone is a sufficient basis for the exercise of such power, see Defs.’ Mem. 14–26, or whether regulation 
of activity that substantially affects interstate commerce is properly viewed as an exercise of the 
Necessary and Proper Clause to aid in the implementation of the commerce power, see Pls.’ Mem. 12.  
Although Defendants maintain that this case is easily resolved by applying binding Commerce Clause 
precedent, this quarrel as to the constitutional basis for the substantial effects test is ultimately 
academic.  Under either formulation, the Order at issue here is within the federal government’s 
Article I powers, which Congress has validly delegated to CDC. 
A. The Order Is Plainly Authorized under the Commerce Clause.   
 
As demonstrated in Defendants’ opposition, the Supreme Court and the Fifth Circuit have 
both recognized that regulations of the rental housing market—like the Order at issue here—fit 
comfortably within the commerce power.  See Defs.’ Mem. 16–18 (citing Russell v. United States, 471 
U.S. 858 (1985) and Groome Resources Ltd. v. Parish of Jefferson, 234 F.3d 192 (5th Cir. 2000)).  A 
straightforward application of this binding precedent dictates that the Order is authorized under the 
Commerce Clause.  See id. at 16–20.  This is particularly true given the “presumption of 
constitutionality” courts afford to the actions of coordinate branches of government,  United States v. 
Morrison, 529 U.S. 598, 607 (2000), and the rational basis standard under which courts analyze 
Commerce Clause challenges, see, e.g., Lopez, 514 U.S. at 557. 
 
Plaintiffs’ attempts to distinguish this controlling authority fall flat.  They assert that the Court 
may disregard the Supreme Court’s holding in Russell because (1) it is purportedly not a Commerce 
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Clause case and (2) it predates Lopez and Morrison.  See Pls.’ Reply in Supp. of Mot. for Prelim. Inj. 
(Pls.’ Reply) 6–7, ECF No. 13.  As to the first point, Russell is plainly a Commerce Clause case.  It is 
irrelevant that it analyzed whether an as-applied exercise of statutory authority was within the 
commerce power because the statute at issue reflected “an intent by Congress to exercise its full power 
under the Commerce Clause.” 471 U.S. at 859.  Russell’s holding thus informs the reach of not only 
the statute, but also the commerce power.  As to the second point, although Lopez clarified that 
whether a regulation falls within the commerce power depends upon “whether the regulated activity 
‘substantially affects’ interstate commerce,” see 514 U.S. at 559, the Supreme Court in Jones v. United 
States, 529 U.S. 848 (2000), recognized that the conduct analyzed in Russell meets that test, id. at 853, 
as did the Fifth Circuit in Groome, 234 F.3d at 206–07.  Both decisions post-date Lopez, and the latter 
post-dates Morrison. 
 
Moreover, the Supreme Court has repeatedly rejected Commerce Clause challenges based on 
the similarity of the facts presented to controlling case law—as Defendants urge the Court to do here.3  
For example, a decade after Raich, the Supreme Court held that the theft of illegal drugs was properly 
regulated under the Commerce Clause as a logical extension of the principles set forth in Raich.  See 
Taylor v. United States, 136 S. Ct. 2074, 2081 (2016).  The Supreme Court saw no need to utilize the 
Lopez/Morrison factors, or to mention the Necessary and Proper Clause.  Instead, it observed that the 
case “require[d] no more than that we graft our holding in Raich onto the commerce element of the 
                                                 
3 Plaintiffs claim that, by pointing out that controlling precedent obviates the need to separately analyze 
the factors discussed in Lopez and Morrison, Defendants have proposed a new “test” that requires the 
conclusion that Raich overturned Morrison.  See Pls.’ Reply 4–5 & n.7.  Not so.  As Defendants have 
explained, the Lopez/Morrison factors—which are not prerequisites for a regulation to pass muster under 
the Commerce Clause, but rather “considerations” that may “contribute[]” to a Commerce Clause 
analysis—demonstrate that the Order is a valid exercise of the commerce power.  See Morrison, 529 at 
609; Defs.’ Mem. 21–26.  But where a regulation plainly falls within that power under governing case 
law, there is simply no need to belabor the point by ticking through each of those considerations.  See 
Taylor v. United States, 136 S. Ct. 2074, 2081 (2016). 
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Hobbs Act.”  Id. at 2080.  Raich similarly observed that the situation presented in that case was 
strikingly similar to that in Wickard v. Filburn, 317 U.S. 111 (1942), and that the challenged regulation 
should be upheld for the same reasons.  See Defs.’ Mem. 20.  Because this case presents a logical 
extension of the principles set forth in Russell and Groome, the Court should take the same approach 
here.   
 
But if the Court instead chooses to analyze the Order using the four Lopez/Morrison factors, 
the conclusion is identical:  the Order regulates economic activity that has a substantial effect on 
interstate commerce, and thus is authorized by the Commerce Clause.  See Defs.’ Mem. 20–26.  Most 
importantly, as Defendants’ opposition shows, the Order regulates economic activity: the contractual 
relationship between landlords and tenants.  Id. at 22–23.  And, like the denial of reasonable 
accommodations analyzed in Groome, the actions prohibited by the Order—evictions—are “directly 
tied” to this economic activity; the Order operates on rental agreements by temporarily restricting an 
otherwise-available remedy for breach of contract.  See 234 F.3d at 206.  Because the activity regulated 
is the economic relationship between landlords and tenants, the fact that the Order leaves untouched 
one part of that contractual relationship—tenants’ obligation to pay rent—is beside the point.  Contra 
Pls.’ Reply 6.   
 
But even if Plaintiffs were correct that the Order regulates noneconomic activity—and they 
are not—the Order would still be an appropriate exercise of the commerce power because the activity 
regulated has a direct and substantial effect on interstate commerce.  Plaintiffs’ own declarations prove 
the point.  Each Plaintiff has sworn that it incurred economic damages as a result of the Order.  See 
Terkel Decl. ¶ 6; C. Moore Decl. ¶ 14; J. Moore Decl. ¶ 14; MacDonald Decl. ¶ 17.  These declarations 
belie Plaintiffs’ conclusory argument that “inference upon inference” is required to discern the Order’s 
effect on interstate commerce.  See Pls.’ Reply 9.  Nor do Plaintiffs make any attempt to square the 
two assertions; indeed, they could not.  And when “viewed in the aggregate”—as black-letter law 
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requires—the economic effects of the Order (such as those Plaintiffs themselves claim to feel) 
“implicate[] an entire commercial industry.”  Groome, 234 F.3d at 206.  Thus, as in Groome, “[t]he activity 
being regulated is one that directly affects the . . . rental housing market.”  Id. at 205.   
 
On this score, GDF Realty Investments v. Norton, 326 F.3d 622 (5th Cir. 2003)—a decision upon 
which Plaintiffs rely heavily—is instructive.  There, the Fifth Circuit rejected a Commerce Clause 
challenge to environmental regulation preventing “takes” of—essentially, harm to—certain cave-
dwelling species residing solely in two Texas counties.  Id. at 639.  Although the court determined that 
the “takes” were both intrastate and noneconomic, it upheld the statute as applied to the cave species 
as part of a larger regulation of activity that, in the aggregate, substantially affected interstate 
commerce.  See id. at 628, 638–40.  The Order here is an even easier case because it regulates economic 
activity.  See Defs.’ Mem. 18, 22–23.  But as even Plaintiffs’ own cited cases show, the fact that the 
activity regulated, in the aggregate, substantially affects interstate commerce suffices to uphold it as a 
valid exercise of Commerce Clause authority.  
 
Indeed, the single post-Raich decision Plaintiffs cite that found a federal regulation fell outside 
the bounds of the Commerce Clause is nonbinding, distinguishable, and inconsistent with the 
decisions of multiple federal courts of appeals and the highest courts of several states.  Gustafson v. 
Springfield, Inc., 2020 WL 5755493 (Pa. App. Sept. 28, 2020)—an intermediate state court decision—
held that a federal “tort reform” statute limiting the liability of gun manufacturers fell outside of 
Congress’s authority under the Commerce Clause.  Id. at *19.  The claimed links between the 
challenged law and interstate commerce were (1) the fact that a firearm used in a tortious act must 
have been involved in interstate commerce and (2) the economic effects of lawsuits on interstate 
commerce.  Id. at *18.  In determining that the regulation at issue exceeded the commerce power, the 
Gustafson court noted that the mere fact that a gun involved in an allegedly tortious event had passed 
through interstate commerce at some point (no matter how remote and no matter whether it involved 
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the parties to the alleged tort) was similar to the link to interstate commerce found insufficient in 
Lopez.  Id. at *23.  It also reasoned that the effects of lawsuits on interstate commerce, without more, 
lacked a limiting principle, and that such reasoning, if extrapolated broadly, would permit 
congressional regulation of any activity involving courts.  Id. at *22.   
 
The Order at issue here is entirely distinguishable.  As an initial matter, it regulates only parties 
already involved in a preexisting commercial relationship.  Accordingly, whether it affects interstate 
commerce does not depend upon a commercial act that the parties affected by the regulation might 
have had no involvement with.  And the Order’s substantial effects on interstate commerce do not 
depend on the economic effects of any lawsuit that might (or might not) be brought by a landlord 
seeking an eviction.  Instead, the Order regulates economic, contractual relationships, and its direct 
financial impacts on those contractual relationships, when viewed in the aggregate, affect interstate 
commerce via the larger market for rental housing.  
 
Gustafson is not only distinguishable, but also a marked outlier inconsistent with the well-
reasoned decisions of multiple federal courts of appeals and state courts of last resort.  The Second 
Circuit, for example, reached the opposite conclusion regarding the same Act, deeming it a 
constitutional exercise of the commerce power.  See City of New York v. Beretta U.S.A. Corp., 524 F.3d 
384, 393–95 (2d Cir. 2008); see also Ileto v. Glock, Inc., 565 F.3d 1126, 1140–41 (9th Cir. 2009) (“We 
have no trouble concluding that Congress rationally could find that, by insulating the firearms industry 
from a specified set of lawsuits, interstate and foreign commerce of firearms would be affected.”).  
The highest courts of several states have similarly upheld the statue’s constitutionality.  See Adames v. 
Sheahan, 909 N.E. 2d 742, 765 (Ill. 2009) (finding the statute “a valid exercise of the federal power to 
regulate interstate commerce”); see also District of Columbia v. Beretta U.S.A. Corp., 940 A.2d 163, 172–
73 (D.C. 2008) (finding no separation of powers issue).  Thus, to the extent this Court looks to any of 
this nonbinding authority as persuasive, it would be far more advisable to look to the weight of 
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authority expressed in numerous federal and state high-court decisions rather than an outlier 
intermediate state-court opinion. 
 
Finally, the Order is easily distinguishable from the subject of Chief Justice Roberts’s 
Commerce Clause analysis in NFIB v. Sebelius, 567 U.S. 519 (2012).  Although the Chief Justice’s 
opinion was joined by no other Justice, and is not controlling, see Defs.’ Mem. 26 n.9, it is also 
unhelpful as persuasive authority here because its Commerce Clause analysis hinged on the fact that, 
in the Chief Justice’s view, the Affordable Care Act’s individual mandate did not “regulate” existing 
commerce, but rather “force[d] individuals into commerce precisely because they elected to refrain 
from commercial activity.”  NFIB, 567 U.S. at 558.  Here, by contrast, it is uncontested that the Order 
regulates preexisting landlord-tenant relationships.  The Chief Justice’s reasoning as to why the 
individual mandate was not a valid exercise of the commerce power thus has no application here. 
 
In sum, Defendants have cited multiple analogous, controlling cases that demonstrate that the 
Order falls within the Commerce Clause authority.  Plaintiffs point to none.  If the Court exercises its 
discretion to issue a declaratory judgment, it should be in Defendants’ favor.   
B. Alternatively, the Order Is a “Necessary” and “Proper” Means of Achieving a 
Legitimate End under the Commerce Power. 
 
Notwithstanding the clear holdings of Russell and Groome that regulation of the economic 
relationship between landlords and tenants is permissible under the Commerce Clause, Plaintiffs argue 
that the Court must apply not only the four Lopez/Morrison factors, but also inquire whether the action 
is “proper” under the Necessary and Proper Clause.  See Pls.’ Reply 3–5 (citing Raich, 545 U.S. at 33–
42 (Scalia, J., concurring)).  This additional layer of analysis is unnecessary, as the Commerce Clause 
alone authorizes the Order.  See supra pp. 3–8; see also Defs.’ Mem. 15 & n.4, 26–27.  But even if 
analyzed under the Necessary and Proper Clause, the Order easily survives.  
 
In determining whether the Necessary and Proper Clause authorizes a federal regulation, 
courts look to whether the regulation “constitutes a means that is rationally related to the 
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implementation of a constitutionally enumerated power.”  United States v. Comstock, 560 U.S. 126, 134 
(2010).  For example, in a case cited by Plaintiffs, the Fifth Circuit upheld a federal requirement that 
sex offenders keep their registration current when moving intrastate, finding that the Necessary and 
Proper Clause gives Congress the authority to regulate this entirely local, noneconomic activity in “the 
attainment of a legitimate end under the commerce power.”  United States v. Whaley, 577 F.3d 254, 259–
61 (5th Cir. 2009) (quoting Raich, 545 U.S. at 35–37 (Scalia, J., concurring)).   
 
As explained in Defendants’ opposition, because the Order operates on economic activity that 
the Supreme Court and Fifth Circuit have held is properly regulable under the Commerce Clause, it 
presents a straightforward exercise of Commerce Clause authority that does not require the necessary-
and-proper analysis applied in Whaley.  See Defs.’ Mem. 18, 22–23.  But even assuming the Order did 
not regulate economic activity, it achieves what both the Supreme Court and this Circuit have held is 
a legitimate end under the commerce power: regulation of the rental housing market.  Accordingly, 
the Order has a rational relationship to the commerce power and would be authorized under the 
Necessary and Proper Clause. 
 
Further, the Supreme Court has recognized that a history of federal involvement in the 
regulated area may inform “the reasonableness of the relation” between a new regulation and “pre-
existing federal interests” in the Necessary and Proper Clause context.  Comstock, 560 U.S. at 137.  
Defendants have shown that courts have long upheld federal regulation of the market for residential 
rental properties under the Commerce Clause, most notably in the Fair Housing Act and its 
amendments.  See Defs.’ Mem. 17–18; see also Woods-Drake v. Lundy, 667 F.2d 1198, 1201 (5th Cir. 
1982) (finding that threat of racially motivated eviction violated Fair Housing Act and 42 U.S.C. 
§ 1982).  But even if the activity regulated is defined narrowly as evictions, there is still an established 
record of federal involvement.  The most recent and comparable example is the eviction protection 
included in the CARES Act.  Pub. L. No. 116-136, § 4024, 134 Stat. 281 (Mar. 27, 2020).  But the 
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federal government has provided temporary protection from eviction for members of the armed 
forces since at least World War II.  See Soldiers’ and Sailors’ Civil Relief Act of 1940 (SSCRA), Pub. 
L. No. 76-861, 54 Stat. 1178 (1940) (codified as amended at 50 U.S.C. § 3951(b)(1)).4  Plaintiffs are 
thus incorrect that the Order represents “an unprecedented expansion of federal authority into the 
traditional police power of the states.”  Pls.’ Reply 10. 
 
Instead, the entire premise of Plaintiffs’ argument is faulty, as it ignores the constitutional 
principle of the supremacy of federal law.  The Supremacy Clause states that federal law “shall be the 
supreme law of the land; and the judges in every state shall be bound thereby, any thing in the 
Constitution or laws of any State to the contrary notwithstanding.” U.S. Const. art. VI, cl. 2.  Thus,“[a]s 
long as it is acting within the powers granted it under the Constitution, Congress may impose its will 
on the States,” including by “legislat[ing] in areas traditionally regulated by the States.” Gregory v. 
Ashcroft, 501 U.S. 452, 460 (1991).  Plaintiffs seek to turn this doctrine on its head, arguing that even 
if the Order is within the federal government’s constitutional powers—or, as they put it, 
“necessary”—the Court should nonetheless declare it unconstitutional—or not “proper”—because it 
touches upon “matters of traditional state concern.”  Pls.’ Mem. 23–24.  That is simply not the law.  
Nor are Plaintiffs correct that Chief Justice Roberts’s NFIB opinion supports such an inverted reading 
of the Constitution.  Instead, the Chief Justice’s Necessary and Proper Clause analysis represents an 
extension of his Commerce Clause opinion, positing that federal regulation should “be limited to 
regulating under the Commerce Clause those who by some preexisting activity bring themselves within 
the sphere of federal regulation.”  NFIB, 567 U.S. at 560.  That preexisting activity exists here, making 
Plaintiffs’ invocation of NFIB off base. 
                                                 
4 Although several courts have found the SSCRA a valid exercise of Congress’s war powers, see, e.g., 
United States v. Alberts, 59 F. Supp. 298, 299 (E.D. Wash. 1945), the law nevertheless demonstrates a 
history of federal regulation of residential evictions, see Comstock, 560 U.S. at 138 (looking to analogous 
statutes not presenting the issue at hand in reviewing history of federal regulation). 
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For all of these reasons, should the Court exercise its discretion to issue a declaratory judgment 
at this time, it should find the Order a valid exercise of the federal government’s enumerated powers. 
II. 
The Order Precludes Evictions for Nonpayment of Rent. 
 
Finally, Defendants would like to further address a question the Court raised during oral 
argument that bears upon Plaintiffs’ standing.  The Court inquired whether, even if a tenant were a 
“covered person” subject to the Order’s protections, a landlord could nonetheless evict him pursuant 
to the Order’s exception for evictions based on criminal activity if, due to nonpayment of rent, the 
tenant could be considered to have committed the offense of criminal trespass under Texas Penal 
Code § 30.05(a) by remaining in his residence.  See Hr’g Tr. 15:13–22, 22:12–23:12.  The government’s 
position is that carrying out an eviction under such circumstances would be impermissible while the 
Order is in effect. 
 
Although it is true that the Order does not preclude evictions based on a tenant “[e]ngaging 
in criminal activity while on the premises,” it also makes plain that it prohibits evictions of covered 
persons where the only basis is failure to fulfill an obligation regarding “the timely payment of rent or 
similar housing related payment.”  Temporary Halt in Residential Evictions To Prevent the Further 
Spread of COVID-19, 85 Fed. Reg. 55292, 55294 (Sept. 4, 2020).  The effectiveness of the Order 
would thus be greatly diminished, at the risk of the exception swallowing the rule, were remaining in 
one’s residence despite nonpayment of rent considered criminal activity.  Given that the stated intent 
of the Order is “mitigating the spread of COVID-19,” a construction that would result in substantially 
more evictions, thus increasing the risk of disease transmission as otherwise covered persons move 
into congregate settings or experience homelessness, would be contrary to its purpose.  Id. at 55293 
(“The Order shall be interpreted and implemented in a manner as to achieve the following objectives: 
[m]itigating the spread of COVID-19 within congregate or shared living settings, or through homeless 
shelters . . . .”).  To the extent this reading conflicts with state law, that contrary law would be 
Case 6:20-cv-00564-JCB   Document 23   Filed 12/04/20   Page 15 of 18 PageID #:  339

12 
 
preempted.  See 42 U.S.C. § 264(e) (regulations issued under 42 U.S.C. § 264—such as the Order—
preempt state law “to the extent that such a provision conflicts with an exercise of Federal authority”). 
 
But it is not apparent that any conflict exists here, as it is unclear whether remaining in one’s 
residence despite not having paid rent in full, without more, could actually constitute criminal trespass 
under Texas law while the Order remains in place.  The elements of that crime are: “(1) a person 
(2) without effective consent (3) enters or remains on the property or in a building of another 
(4) knowingly or intentionally or recklessly (5) when he had notice that the entry was forbidden or 
received notice to depart but failed to do so.”  United States v. Bailey, 111 F.3d 1229, 1238 (5th Cir. 
1997) (citing Daniels v. State, 633 S.W. 2d 899, 901 (Tex. Crim. App. 1982)).  Given that the Order 
informs covered persons that “[u]nless the CDC order is extended, changed, or ended, the order 
prevents you from being evicted or removed from where you are living through December 31, 2020,” 
at least the mens rea element of the crime would appear difficult to prove during the Order’s pendency.  
See 85 Fed. Reg. at 55297.  It is also not obvious that a landlord could withhold “effective consent” 
for a covered person to remain in his residence despite nonpayment of rent or provide an enforceable 
“notice to depart” while the Order remains in effect.  See Anthony v. State, 209 S.W. 3d 296, 310 (Tex. 
Crim. App. 2006) (finding “effective consent” lacking where property owner “lacked authority to 
exclude a person”).  Defendants are not aware of any court having actually considered the interplay 
between section 30.05(a) and the Order, nor do Defendants purport to provide a definitive 
interpretation of Texas criminal law here.  But the issue appears at least ambiguous, and given the 
clear intent of the Order to preclude evictions based on nonpayment of rent, the Court should not 
read the Order as permitting a broadly construed state criminal trespass statute to create an end-run 
around it. 
 
This does not mean that Defendants concede that Plaintiffs have standing to sue.  See Defs.’ 
Mem. 29 n.10.  But it is Defendants’ position that the criminal activity exception to the Order does 
Case 6:20-cv-00564-JCB   Document 23   Filed 12/04/20   Page 16 of 18 PageID #:  340

13 
 
not permit Plaintiffs here to evict their tenants who qualify for protection as covered persons for the 
sole reason that those persons remained in their residences despite nonpayment of rent during the 
pendency of the Order. 
CONCLUSION 
The Court should deny the pending motion for preliminary injunction rather than rule upon 
Plaintiffs’ request for declaratory judgment.  Should the Court choose to exercise its discretion and 
issue a declaratory judgment, however, the Court should declare that the Order is a constitutional 
exercise of federal authority. 
Dated:  December 4, 2020 
Respectfully submitted, 
 
JEFFREY BOSSERT CLARK 
Acting Assistant Attorney General 
 
ERIC BECKENHAUER 
Assistant Director, Federal Programs Branch 
 
/s/ Leslie Cooper Vigen            
LESLIE COOPER VIGEN 
Trial Attorney (DC Bar No. 1019782) 
STEVEN A. MYERS 
Senior Trial Counsel (NY Bar No. 4823043) 
United States Department of Justice 
Civil Division, Federal Programs Branch 
1100 L Street, NW 
Washington, DC 20005 
Tel:  (202) 305-0727 
Fax:  (202) 616-8470 
E-mail:  leslie.vigen@usdoj.gov 
 
Counsel for Defendants
Case 6:20-cv-00564-JCB   Document 23   Filed 12/04/20   Page 17 of 18 PageID #:  341

 
 
CERTIFICATE OF SERVICE 
I hereby certify I served this document today by filing it using the Court’s CM/ECF system, 
which will automatically notify all counsel of record. 
Dated:  December 4, 2020 
 
 
/s/ Leslie Cooper Vigen 
 
Trial Attorney 
 
 
 
Case 6:20-cv-00564-JCB   Document 23   Filed 12/04/20   Page 18 of 18 PageID #:  342

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