Defendants' Further Response to the December 16, 2020 Order — Terkel v. CDC (E.D. Tex.)

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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’ FURTHER RESPONSE TO  
THE COURT’S DECEMBER 16, 2020 ORDER 
 
 
Pursuant to the Court’s Order of December 16, 2020, see ECF No. 30, and as an addendum 
to Defendants’ December 23, 2020 response, see ECF No. 33, Defendants respectfully notify the Court 
that, on December 27, 2020, the President signed into law the Consolidated Appropriations Act, 2021.  
See White House, Bill Announcement (Dec. 27, 2020), https://www.whitehouse.gov/briefings-
statements/bill-announcement-122720/.  Section 502 of that Act provides: 
The order issued by the Centers for Disease Control and Prevention under section 361 
of the Public Health Service Act (42 U.S.C. 264), entitled ‘‘Temporary Halt in 
Residential Evictions To Prevent the Further Spread of COVID–19’’ (85 Fed. Reg. 
55292 (September 4, 2020) is extended through January 31, 2021, notwithstanding the 
effective dates specified in such Order. 
 
H.R. 133, 116th Cong. (Pub. L. No. 116-___, ___ Stat. ___), div. N, tit. V, § 502 (as signed by the 
President, Dec. 27, 2020). 
 
Plaintiffs have not moved for leave to amend the complaint to challenge this Act, and such a 
motion would be futile.  “In assessing the scope of Congress’ authority under the Commerce Clause,” 
the task of the Court “is a modest one.”  Gonzales v. Raich, 545 U.S. 1, 22 (2005).  The Court “need 
not determine whether [plaintiffs’] activities, taken in the aggregate, substantially affect interstate 

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commerce in fact, but only whether a ‘rational basis’ exists for so concluding.”  Id.  As Defendants 
have explained, that standard is easily met here because the Supreme Court has held that the regulation 
of rental property is within Congress’s commerce power.  See Jones v. United States, 529 U.S. 848, 853 
(2002) (explaining that Russell v. United States, 471 U.S. 858, 862 (1985) stated as “dispositive fact” that 
the petitioner “‘was renting his apartment building to tenants at the time he attempted to destroy it by 
fire’”).  But in any event, principles of judicial restraint require serious hesitation before striking down 
an Act of Congress—“the gravest and most delicate duty that this Court is called on to perform.”  
Shelby Cty., Ala. v. Holder, 570 U.S. 529, 556 (2013) (internal quotation marks omitted). 
Dated:  December 28, 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

 
 
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 28, 2020 
 
 
/s/ Leslie Cooper Vigen 
 
Trial Attorney

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