By Dave Simpson

Law360 (March 11, 2021, 11:43 PM EST) -- The Centers for Disease Control and Prevention's pandemic eviction moratorium exceeds the statutory authority given to the agency by Congress, an Ohio federal judge ruled Wednesday in the second blow to the order in the past few weeks.

U.S. District Judge J. Philip Calabrese declined to halt enforcement of the order but found that the CDC's reading of the Public Health Service Act, which authorizes the proclamation and enforcement of regulations to protect against the interstate spread of diseases, was too broad and its eviction freeze exceeded its authority.

"The most natural and logical reading of the statute as a whole does not extend the CDC's power as far as defendants maintain," he said. "Such a broad reading of the statute ... would authorize action with few, if any, limits — tantamount to creating a general federal police power."

He sided with a collection of landlords, property managers and trade associations that challenged the order, which is set to expire at the end of the month, on a slew of grounds.

The text of the act in question does not authorize "boundless action" or rely on the judgment of the CDC director, the judge said.

"This case does not implicate broader policy considerations regarding such a moratorium or depend on judgments whether it constitutes sound public policy," he said. "On that issue, the court expresses no opinion. Indeed, such a consideration falls outside the task of interpreting the applicable statutes and determining their meaning."

Last month, a Texas federal judge ruled that the CDC can't enforce the eviction freeze, holding that the agency lacks the constitutional authority to regulate private property rights.

In his order, U.S. District Judge J. Campbell Barker, an appointee of former President Donald Trump, sided with a group of Texas landlords who've argued that the CDC's September eviction moratorium extends "far beyond the legitimate scope of federal power." The landlords — one individual and six companies — say they're owed thousands of dollars in unpaid rent.

The CDC has maintained that a nationwide eviction ban is within its federal authority to regulate commerce among the states.

The regulated activity in dispute, however, is not the production or use of a commodity that is traded in an interstate market, Judge Barker said, adding that real estate "is inherently local." The judge granted summary judgment in favor of the property owners, ruling that the order exceeded the CDC's constitutional authority.

"Residential buildings do not move across state lines," he said. "And eviction is fundamentally the vindication of the property owner's possessory interest."

Judge Barker characterized the CDC's order as criminalizing "the possession of one's property when inhabited by a covered person."

Specifically, Judge Barker said that the eviction of one person from a dwelling does not alone have a substantial effect on interstate commerce. Though quarantining an infected person would keep that person from traveling across state lines, the CDC's order "is not such a quarantine," the judge said.

The moratorium is the federal government's second stab at preventing evictions amid the pandemic. Under the Coronavirus Aid, Relief and Economic Security Act, Congress imposed a limited freeze on evicting residents of properties with federally-backed mortgages, as well as participants in federal housing programs. The ban expired on July 24.

The CDC stepped in on Sept. 1, prohibiting evictions through at least the end of the year — though the measure has been extended several times since. The CDC's ban is more sweeping and applies to all tenants, regardless of where they live, as long as they meet certain criteria tied to the precariousness of their situation and ability to pay, among other factors.

The CDC has couched its eviction freeze in public health terms, saying people who are booted from their homes are likely to move around, in some cases crossing state lines. This could increase transmission rates and further spread the virus, according to the agency.

The challengers are represented by Pacific Legal Foundation and the 1851 Center for Constitutional Law.

The CDC is represented by Leslie Cooper Vigen of the U.S. Department of Justice's Civil Division, Federal Programs Branch.

The case is Skyworks, Ltd., et al v Centers for Disease Control and Prevention et al, case number 5:20-cv-2407, in the U.S. District Court for the Northern District of Ohio.

--Additional reporting by Hailey Konnath. Editing by Emily Kokoll.

For a reprint of this article, please contact reprints@law360.com.