Did Congress Give the CDC More Authority Than the President?
Since the beginning of the COVID-19 pandemic, Americans have argued about the merits of guidelines issued by the Centers for Disease Control and Prevention (CDC), which have been described as both too strict and too lax, too rigid and too changeable. Imagine how bitter an already rancorous debate would have been if the CDC had the power to command as well as recommend the best methods for reducing virus transmission.
Except according to the CDC, it does have that power. The agency’s legal defense of its nationwide eviction moratorium, which it recently extended for another month, implies that the CDC has boundless authority to control how Americans behave and interact with each other, as long as it thinks the edicts are “reasonably necessary” to prevent the interstate spread of “any” communicable disease.
As George Mason law professor Ilya Somin noted in September, when the CDC first ordered landlords to continue housing tenants who fail to pay their rent, this purported power is not confined to diseases as dangerous as COVID-19. Even the threat posed by the seasonal flu or the common cold theoretically could justify invoking it.
Nor is the power asserted by the CDC limited to overriding rental contracts. It clearly would authorize a national mask mandate of the sort that Joe Biden conceded was beyond his powers as president, not to mention nationwide business closures and home confinement of every American who is not engaged in activities the CDC’s director deems essential.
Transforming its recommendations into commands, the CDC could have legally required all of us to keep our distance from members of other households. It even could have forced us to “clean and disinfect frequently touched objects and surfaces using a regular household cleaning spray or wipe,” back when it thought that was a sensible safeguard against COVID-19.
The CDC’s rationale for its eviction moratorium, which applies to renters who claim financial hardship, is that evicted tenants might “beco
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