Critics of the SCOTUS Decision Against the CDC's Eviction Moratorium Might Miss the Rule of Law When They Need It

The Court said it "strains credulity" to believe that Congress gave the CDC the "breathtaking amount of authority" it asserted.

By Jacob Sullum of Reason.

"When the Supreme Court blocked enforcement of the Biden administration's eviction moratorium last night, it was technically lifting a stay on a federal judge's ruling against that decree. But the per curiam opinion makes it clear that six justices do not buy the statutory rationale for the moratorium, which the Court said would give the Centers for Disease Control and Prevention (CDC), the agency that ordered landlords to continue housing tenants who say they cannot afford to pay their rent, "a breathtaking amount of authority."

According to the CDC's reading of the Public Health Service Act, the Court noted, it has "broad authority to take whatever measures it deems necessary to control the spread of COVID–19." That includes the authority to override rental contracts and property rights across the country, since the CDC argues that evictions could promote the spread of COVID-19 by forcing people to live with friends or relatives, in homeless shelters, or in other "congregate or shared living setting[s]." But as the Court noted, "it is hard to see what measures this interpretation would place outside the CDC's reach, and the Government has identified no limit…beyond the requirement that the CDC deem a measure 'necessary.'"

The Court offers some illustrative hypotheticals: "Could the CDC, for example, mandate free grocery delivery to the homes of the sick or vulnerable? Require manufacturers to provide free computers to enable people to work from home? Order telecommunications companies to provide free high-speed Internet service to facilitate remote work?" But those examples only scratch the surface.

If the CDC's understanding of its powers were correct, it would have the authority to make any of its frequently contentious COVID-19 recommendations, including its advice on mask wearing by K–12 students and the general public, mandatory. Rather than focus on people who move because they are evicted, it could simply decree that no one is allowed to change residences. It could require every American to be vaccinated against COVID-19. It could unilaterally impose nationwide shutdowns of businesses and order every American to stay home except for "essential" purposes. It could prescribe fines and jail sentences for people who defy those requirements, as it has with the eviction moratorium. And it could do any of these things not just in response to COVID-19 but also to control the spread of any communicable disease, including the seasonal flu and the common cold.

Where does the CDC think it gets this limitless discretion? The Public Health Service Act, which Congress approved in 1944, says "the Surgeon General, with the approval of the Secretary [of health and human services], is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession." It adds that "for purposes of carrying out and enforcing such regulations, the Surgeon General may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary."

A regulation delegates that authority to the CDC, which has heretofore used it rarely and for narrow purposes such as banning the sale of small turtles that carry salmonella. But last fall, when it first imposed its eviction moratorium, the CDC claimed to discover previously unnoticed dictatorial powers. In the CDC's view, "other measures" includes literally anything it claims will help reduce the spread of communicable diseases.

Two-thirds of the federal courts that have considered the issue, including the U.S. Court of Appeals for the 6th Circuit, have said the CDC does not have the power it claims. They generally have taken the view that "other measures" must be similar in kind to the specific examples listed in the statute. That is what U.S. District Judge Dabney Friedrich concluded in May, when she issued the order that the Supreme Court has now allowed to take effect. "Because the plain language of the Public Health Service Act…unambiguously forecloses the nationwide eviction moratorium," Friedrich wrote, "the Court must set aside the CDC Order, consistent with the Administrative Procedure Act…and D.C. Circuit precedent."

On June 29, the Court declined to lift the stay on Friedrich's order. But even then, it was clear that most of the justices agreed with Friedrich. Justice Brett Kavanaugh, who provided the crucial fifth vote against lifting the stay, explicitly said so.

"I agree with the District Court and the applicants that the Centers for Disease Control and Prevention exceeded its existing statutory authority by issuing a nationwide eviction moratorium," Kavanaugh wrote in a concurring opinion. "Because the CDC plans to end the moratorium in only a few weeks, on July 31, and because those few weeks will allow for additional and more orderly distribution of the congressionally appropriated rental assistance funds, I vote at this time to deny the application to vacate the District Court's stay of its order….In my view, clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July 31."

The Biden administration understood the import of Kavanaugh's concurrence. "The Supreme Court declared on June 29th that the CDC could not grant such an extension without 'clear and specific congressional authorization,'" White House Press Secretary Jen Psaki said on August 2. Senior presidential adviser Gene Sperling echoed that point.

"To date," Psaki said in an August 2 press release, "CDC Director Rochelle Walensky and her team have been unable to find legal authority for a new, targeted eviction moratorium." Sperling used nearly identical language at a press briefing the same day, saying the CDC had concluded it lacked legal authority "even for a more targeted eviction moratorium that would focus just on counties with higher rates of COVID spread."

The very next day, under orders from President Joe Biden, the CDC nevertheless issued just such a moratorium, which in practice covered about 90 percent of U.S. counties. Biden conceded that "the bulk of the constitutional scholarship" said the moratorium is "not likely to pass constitutional muster." But he hoped the ensuing litigation would drag on long enough to allow further distribution of rental assistance before the eviction moratorium was overturned.

Yesterday's ruling confirms what Biden already knew. The only dissenters were Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor, which indicates that Chief Justice John Roberts agrees with Kavanaugh and the other four justices that the CDC overstepped its authority.

In a dissent joined by Kagan and Sotomayor, Breyer argues that the Court acted precipitously by lifting the stay "in this summary proceeding." But in the majority's view, the existing record, which includes Friedrich's original opinion, her August 13 ruling on the renewed moratorium, and two rounds of Supreme Court briefing, shows that the landlords and property managers who challenged the CDC's edict "are virtually certain to succeed on the merits of their argument that the CDC has exceeded its authority." The Court says "the applicants not only have a substantial likelihood of success on the merits—it is difficult to imagine them losing," since "it strains credulity to believe that this statute grants the CDC the sweeping authority that it asserts."

The CDC claims the eviction moratorium is based on "a decades-old statute that authorizes it to implement measures like fumigation and pest extermination," the majority notes. But the statute's list of specific disease control measures "informs the grant of authority by illustrating the kinds of measures that could be necessary: inspection, fumigation, disinfection, sanitation, pest extermination, and destruction of contaminated animals and articles."

While "these measures directly relate to preventing the interstate spread of disease by identifying, isolating, and destroying the disease itself," the Court says, the eviction moratorium "relates to interstate infection far more indirectly: If evictions occur, some subset of tenants might move from one State to another, and some subset of that group might do so while infected with COVID–19. This downstream connection between eviction and the interstate spread of disease is markedly different from the direct targeting of disease that characterizes the measures identified in the statute."

The Court adds that "even if the text were ambiguous, the sheer scope of the
CDC's claimed authority…would counsel against the Government's interpretation," since "we expect Congress to speak clearly" when it means to authorize powers of "vast 'economic and political significance.'" The fact that nobody seems to have noticed that the CDC had such powers until last September (76 years after the Public Health Service Act was passed), coupled with the fact that Biden himself contradictorily takes the view that the executive branch does not have the authority to impose measures such as general mask and vaccination requirements, shows how implausible the CDC's interpretation of the statute is. Under the nondelegation doctrine, which says Congress cannot transfer its legislative powers to the executive branch, it is not even clear that Congress could give the CDC such sweeping authority if it wanted to do so.

For the eviction moratorium's most passionate supporters, the question of whether the CDC has the legal authority to impose it is irrelevant. "A group of right wing extremists just decided to throw families out of their homes during a global pandemic," New York Mayor Bill de Blasio tweeted last night. "This is an attack on working people across our country and city."

Rep. Cori Bush (D–Mo.), who protested the expiration of the CDC's previous moratorium by sleeping on the steps of the Capitol, likewise has no patience for legal niceties. "Tonight, the Supreme Court failed to protect the 11 million households across our country from violent eviction in the middle of a deadly global pandemic," she said. "We already know who is going to bear the brunt of this disastrous decision: Black and brown communities, and especially Black women."

The Supreme Court is not "throw[ing] families out of their homes," and it is not the Supreme Court's job to "protect" tenants threatened with eviction. The Court's job is to say what the law is—in this case, to say whether it is reasonable to suppose that Congress granted plenary disease control powers to the CDC, powers that somehow exceed even the president's. If Congress did not do that, pretending that it did blatantly violates the separation of powers and the rule of law. These are safeguards that even the most ardent eviction opponents might find useful in the future, at which point they will have a hard time explaining why the principles they were so quick to abandon should be enforced when they happen to like the result."