If the CDC Can Impose a Nationwide Eviction Moratorium, Why Can’t It Impose a Nationwide Vaccine Mandate?
President Joe Biden this week implored Americans to “please get vaccinated now” against COVID-19, saying “it’s a patriotic thing to do.” The New York Times reports that “top health experts say that it is simply not enough.” Biden’s critics think “the president needs to take the potentially unpopular step of encouraging states, employers and colleges and universities to require vaccinations to slow the spread of the coronavirus.”
Notably missing from that list of suggestions: an executive order telling the Centers for Disease Control and Prevention (CDC) to consider imposing a nationwide vaccine mandate. According to the argument that the Biden administration has deployed in defense of the CDC’s nationwide eviction moratorium, such a mandate is within the agency’s statutory power. Yet the Times says “Mr. Biden’s options to be more aggressive are limited.” Even if he were inclined to unilaterally require vaccination, according to the Times, he does not have the authority to do so. “For the most part,” it explains, “the power lies in the hands of states, employers or private institutions.”
Prior to last September, when the CDC first ordered landlords to continue housing tenants who claim they cannot afford to pay their rent, that gloss would have been uncontroversial. But the eviction moratorium, which the CDC recently extended until the end of July, is based on a reading of the Public Health Service Act that could easily encompass a vaccine mandate.
That law authorizes the secretary of health and human services to “make and enforce such regulations as in his judgment are necessary” to prevent the interstate spread of “communicable diseases.” A regulation delegates that authority to the CDC, which argues that it justifies overriding rental contracts across the country, because evicted tenants might become homeless or move in with other people, thereby increasing the risk of virus transmission. The Biden administration has endorsed that position while defending the moratorium against challenges by landlords and property managers.
According to the Department of Health and Human Services (HHS), U.S. District Judge Dabney Friedrich noted in a May 5 decision that rejected its interpretation of the law, “Congress granted the Secretary the ‘broad authority to make and enforce’ any regulations that ‘in his judgment are necessary to prevent the spread of disease’ across states or from foreign countries.” If the indirect and disputed relationship between evictions and COVID-19 transmission was enough to justify the CDC’s moratorium, the direct and indisputable relationship between inoculation and disease control surely would be enough to justify a CDC order requiring vaccination.
The plaintiffs in the case that Friedrich heard, Alabama Association of Realtors v. HHS, made that point when they asked the Supreme Court to lift a stay on her order blocking enforcement of the eviction moratorium. The CDC, they noted, believes the Public Health Service Act “bestowed upon it the unqualified power to take any measure imaginable to stop the spread of communicable disease—whether eviction moratoria, worship limits, nationwide lockdowns, school closures, or vaccine mandates.” In its response, the Biden administration said the Court “need not consider whether [the statute] would authorize” measures “such as ‘vaccine mandates.'” Bu
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