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