Did Congress Give the CDC More Authority Than the President?

The agency’s legal defense of its eviction moratorium implies that it has vast powers to order Americans around.


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 "become homeless" or move in with other people, thereby increasing the chances of virus transmission. The same rationale could justify an outright ban on changing residences or even broad economic interventions aimed at making sure that all tenants have enough money to cover their rent.

Where does the CDC get these vast powers, which somehow exceed even the president's? It cites the Public Health Service Act, which authorizes the secretary of health and human services to issue regulations that "in his judgment are necessary" to control "communicable diseases," and one of those regulations, which delegates that authority to the CDC's director.

The statute mentions these examples of disease control measures: "inspection, fumigation, disinfection, sanitation, pest extermination," and destruction of infected or contaminated "animals or articles." It then refers to "other measures" deemed "necessary," which according to the CDC encompasses pretty much anything.

Four federal judges and the U.S. Court of Appeals for the 6th Circuit have concluded that the CDC does not have the power it is claiming. Four of those courts held that "other measures" must be similar in kind to the specific examples, while one ruled that even Congress does not have the power to impose an eviction moratorium like the CDC's.

As U.S. District Judge J. Philip Calabrese noted in March, the reading favored by the CDC would "implicate serious constitutional concerns" by authorizing "action with few, if any, limits—tantamount to creating a general federal police power." While Calabrese was alluding to the distinction between state and federal powers, the CDC's position also blurs the distinction between executive and legislative functions.

Other courts have sided with the CDC. On June 2, for instance, the U.S. Court of Appeals for the D.C. Circuit said "the CDC's eviction moratorium falls within the plain text" of the Public Health Service Act.

The resolution of this split has implications that extend far beyond this particular epidemic. If the CDC cannot be trusted to give Americans sound advice, it surely cannot be trusted to give them orders.

© Copyright 2021 by Creators Syndicate Inc.

Update: The Supreme Court on Tuesday declined to lift a stay on a decision against the CDC's moratorium, leaving the order in place until the end of July. But a concurring statement by Justice Brett Kavanaugh indicated that at least five justices think the moratorium is illegal.

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  1. Looks like the Supreme Court gave freedom another “meh, who cares?” Meanwhile, Kavanaugh scores an own-goal for the other team.

    1. I told you from the beginning that Kavanaugh’s emphasis on stare decisis told me he was going to be a second John Roberts. “Conservatism” to Kavanaugh is the principle of defending the liberal decisions of previous Courts.

      1. Sort of makes all the slander, defamation, and radical left/media limpouts over him rather suspect, doesn’t it?

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      2. Gorsuch may be the only new appointment willing to challenge state decisis.

        I think he’s suspect, too, but I trust him more than the other two.

    2. “scores an own-goal for the other team”
      Redundant much?

      1. Point taken.

  2. Busy busy busy at the CDC, so many public health crises to solve…

    1. It’s hard to see how the CDC can be granted powers neither the President nor Congress actually possess, but if the CDC thinks they can use their emergency powers to single-handedly repeal the Second Amendment, let them go ahead and try it.

      1. Just another bullet in the gun-grabber’s gun.

      2. Congress arguably would have the power to make the lockdowns that the CDC argued for. Therefore, in theory, even though the President can’t do what the CDC claims it can, Congress could delegate those powers to the CDC.

        The two problems with that reasoning are
        1. separation of powers (the CDC is an Executive branch, not a sub of the Legislature)
        2. (and far more damningly), despite the CDC’s claims, Congress didn’t grant them the powers in this case.

    2. Why aren’t they mandating masks on guns?

  3. The CDC, just like many federal departments [ Ed, DEA, commerce, ect] need to be abolished.

    1. No. There are times that they are needed, but they do need to be scaled back to their actual mission.

      The CDC of old knew how to quarantine sick people and control outbreaks both small and large scale. The oddity of COVID was that they took an unusual and never-before-seen step of locking down healthy people. While closing schools and stopping public gatherings has been done before, nothing has ever been done on this scale. They took a novel and absurdly extreme measure without any intermediate steps or even consideration of the side-effects.

      1. “…a novel and absurdly extreme measure without any intermediate steps or even consideration of the side-effects.”

        And I’m sure they’d tell you right off that economics ain’t their job.

        Which, aside from flagrant disregard for the essence of the Constitution, is another reason such an agency should never have such power.

        1. … they’d tell you right off that economics ain’t their job

          Until income inequality is a public health crisis.

      2. wrong. we do not need the cdc. constitutionally, public health is a states issue. we absolutely do not need a bloated out of control fed agency.

        1. ^^^ THIS; We DO NOT need a Nazi (def; **National** Socialist) government) as-if history had to remind everyone.

      3. “Is it needed?” is an irrelevant question when its existence is unconstitutional from the start.

      4. Since when did the CDC do that? Last I checked it was individual states doing that.

      5. There are times that they are needed,

        As we just found out when we do need them they will prove incapable of effectively responding because their priority is achieving progressive political goals rather than their institution’s stated purpose.

  4. Giving a bureaucrat potentially unlimited authority based on his own judgment that it is required is idiotic. Giving it to a relatively minor department that nobody pays much attention to is poor judgement. This would not happen if this was under the Defense Secretary.

    1. Every agency needs to send a report to both houses of congress and the executive every month. And hauled before committees at least twice a year.

  5. How does the CDC actual enforce such edicts? If you are a landlord call their bluff and throw the bums out. Best they can do is use the corts where they should lose.

    1. I really don’t know. But I do know that the rent is still due. It’s merely been deferred. Deadbeat renters who thought they had a gravy train are in for a shock end of next month. They’ll be evicted with a giant permanent block spot on their credit report. And landlords are looking at credit reports.

      1. Now there will be a government program for people whose credit reports are nothing but a black spot.

        Really … Gov Newsome is using billions of federal funds to “make whole” (80%) all of the landlords that were shorted by non-paying, non-evictable tenants during the covid mess.
        [1] How would that make you feel, having paid all your rent like a chump during the crisis while your neighbor gets off scot-free (landlords who take offer cannot adversely report on tenants), and
        [2] when the folks in Cali use this new attempt at pant-shitting fear over the delta variant as a reason to re-impose all the mask mandates and eviction moratoriums for the upcoming year, what sort of rules-abiding, hard-working moron is actually going to pay their rent at all?

        1. They actually upped that from 80% to 100%.

          A lot of landlords and tenants were not applying, so they’re trying to make it more tempting to take the money.

          Not sure why the funds aren’t being grabbed, but I’m guessing a combination of too much bureaucracy, people not being able to prove they’re not paying because of Covid, and landlords who know their tenants are untrustworthy and want them out, period, and want this eviction moratorium lifted. Maybe more things.

  6. .What else ya gonna argue in an appellate court when you’re tasked with defending such an order as has been thrust in their lap? It’s not like CDC wanted to get into that biz, it’s just that the populace expected the Trump administration to “do something” when they’d been criticized for not doing enough. They didn’t expect it to survive a legal challenge, and probably not to undergo one. The emergency orders hadn’t been projected to last this long. It just looks ludicrous in the big picture.

    1. ‘…it’s just that the populace expected the Trump administration to “do something”
      This is often a root cause of governmental overreach; if a plurality of citizens insist, demand that “somebody” [aka the government] “do something,” they will indeed “do something” and keep doing it, and more of it.

      1. Which is why it is absurd to assume that mankind naturally wants more freedom.

        They want to be free to do whatever they want with no consequences. And whatever they want is not work for a living. They want escapism and pleasure. But unconstrained, those lead to destructive consequences.

        Ergo government exists to clean up their messes so they can continue without disturbance of reality knocking. And government is ok with this because it means the populace doesn’t care what else the government is doing.

    2. While I do not like Trump, his early handling of the COVID-19 crisis was his time to shine. We finally had full 24/7 openness in government. It was bumbling, but it was essentially his version of the fireside chat. And he pushed through emergency use authorization for vaccines. Meaning we got the vaccine months (years?) earlier than otherwise. Which is why we’re ahead of most other countries on the vaccination front.

      Trump could have, if he wanted to, reined in the CDC on the eviction thing. At least pounded the gavel. But it was too close to election season so I guess it wasn’t a priority for him.

      1. I don’t know why the article doesn’t mention this, but the CDC eviction ban was initially done because Trump issued an executive order telling them to do it.

  7. Inconvenient and disturbing truth: unless you live in a rural area or trailer park, most of your neighbors are probably eager to cede autonomy to whatever federal agency promises them safety and security. Its not so much the CDC grabbing power as the sheeple begging to be herded.

    1. I certainly get the rural/ exurban vs. urban/ suburban divide, but “rural area of a trailer park?” I never realized that the denizens of trailer parks were typically libertarian.

      1. Well, at least in my imagination most trailer park residents are more “fuck off” than “thanks for telling me how to live”.

        1. Lol yeah I think you are right on this. Though my friends from those areas are few.

  8. Where does the CDC get these vast powers, which somehow exceed even the president’s? It cites the Public Health Service Act, which authorizes the secretary of health and human services to issue regulations that “in his judgment are necessary” to control “communicable diseases,” and one of those regulations, which delegates that authority to the CDC’s director.

    This is almost exactly the same rationale that the Swedish version of the CDC used to deal with covid. In Sweden it is called ministerstyre. Sweden prohibits (constitutionally) legislation-created agencies from being micromanaged or arbitrarily ordered around by future ‘ministers’ (meaning in a parliamentary system both the legislative and executive elected officials). CDC/agency gets to decide how to interpret the authorizing legislation. If ministerial government doesn’t like that interpretation, then the only option is to change the legislation.

    It’s similar to the notion of Rechtsstaat that Hayek wrote about. A liberal notion of structurally restraining government to deal with issues that arose after the US constitution era. Namely how do you deal with bureaucratic/administrative overreach. That is all incomprehensible in the US

    1. That actually makes sense. Nothing was stopping Congress (and a Republican led Congress at that) from passing legislation reining in the CDC.

      The problem we have here in the US is that our checks and balances simply aren’t working. Congress didn’t do anything about the CDC because Congress didn’t realize it had any power left after it ceded it all away so they could make their tee times.

      1. I agree checks and balances – and the other mechanisms by which classical liberals sought to allow our governance and limit it at the same time – just isn’t working. Probably can’t be fixed by obsessing about the way they did work (maybe) in 1787 and refusing to change. Probably can’t be fixed by arbitrarily having some other semi-arbitrary people decide what isn’t working and change it semi-opaquely.

        Too bad there’s no classical liberal political party.

      2. Oh, they realize they have that power, and are scared shitless of it. Their re-elections depend on rousing voters repeatedly about things the legislators claim they’re doing all they can about, when really they’re not. And they’ve been playing this game for a long time. I remember looking up Congressional proceedings from the 1960s regarding drug regulation, and one member of Congress saying he was sure that after this bill was enacted, the secretary of HEW would classify this drug as such-and-such. So why not just write that classification into the bill? And what the heck, if a member of Congress was willing to state that on the record, it must have already been accepted practice to act that way, going who knows how far back?

      3. The Constitution as Madison said, was written for a religious and virtuous people. As people have become irreligious which leads them to believe vices are virtues, the Constitution has become an old piece of parchment without meaning and our Federal Government has for decades, been happy to see it become meaningless.

    2. “CDC/agency gets to decide how to interpret the authorizing legislation.”

      Unfortunately that notion is very imbedded in the US Government, whereby Congress has yielded their legislative responsibility to executive branch agencies, and the courts per precedent of “Chevron Defense” have deferred to them in just how they will interpret, adopt, enforce, and punish violations of such.

      It is fucked up, and we as a country need to decide how we are going to live with this. I suspect about half of the country will [already does] gleefully embrace a very activist overlord who will promise to care for them and stick it to their enemies.

      1. I suspect about half of the country will [already does] gleefully embrace a very activist overlord who will promise to care for them and stick it to their enemies

        I’m pretty sure it’s more like 99%. The only disagreement is which activist overlord gets to decide who are the enemies.

    3. I didn’t understand your explanation of ministerstyre, but I’m pretty sure I do understand Wikipedia’s. The concept seems to be that when the head of an office delegates authority, s/he does so irrevocably to those immediately underneath, and so on down the line; that the written rules should be sufficient, and if they allow too much leeway and ambiguity, tough shit, rewrite the rules, don’t countermand details at a level below you.

  9. From the CDC’s website:

    On July 1, 1946 the Communicable Disease Center (CDC) opened its doors and occupied one floor of a small building in Atlanta…
    Armed with a budget of only $10 million and fewer than 400 employees, the agency’s early challenges included obtaining enough trucks, sprayers, and shovels necessary to wage war on mosquitoes.”

    The 202o budget was $1,276,664,000. A classic case of “the ever expanding bureaucracy.”

    I am thinking that we are the new “mosquitos.”

    1. Mission creep on steroids.

      I’d like to see that the Far Side cartoonist would do with that.

      1. Or South Park.

  10. > clean and disinfect frequently touched objects and surfaces using a regular household cleaning spray or wipe

    My business is still enforcing this. Janitors have to sanitize all handles and stair rails twice a day. This has been recently extended to sanitizing coffee machines and microwaves before and after each use (but not faucet handles or trashcan lids).

    Never underestimate an office manager’s willingness to grab power.

    1. Or pretty much anyone; this is central to the discussions in The Federalist Papers, the human tendency toward tyranny, and how any successful republic must guard against it, if it wants to survive.

    2. I think this is one of the primary means by with the flu has been stymied.

      1. Going to be fun seeing how they come out with a seasonal flu vaccine this fall, when they have so little to go on.

  11. If the CDC cannot be trusted to give Americans sound advice, it surely cannot be trusted to give them orders.

    Cannot be trusted, should not be trusted, and after this pandemic, will not be trusted.

  12. the cdc certainly does not have the authority to vacate my private property rights. no gov has that authority. the constitution does not have an “except in the case of a virus” clause. we have our rights period.

  13. “It cites the Public Health Service Act” — And where did ‘The People’ give the federal THAT authority? I see no “Congress shall have the power to initiate Public Health Agencies” in the Constitution…..

    The Feds have been their own Nazi-Camp for years! It’s to the point USA Patriots and the States need to knock them off their Nazi podium. State’s need to nullify the CDC.

  14. If the government has the power to halt evictions, the property owners have very right to demand the federal government compensate the for every month of missed rent, every fee, etc to the last penny.

    1. >>>> ENTER; Nazism…… EXIT; USA…..
      Naw; I’d like to keep the USA (as defined by the U.S. Constitution) around a while especially while I live here.

    2. Nullify mortgage and property taxes on all residential rental properties. The cynic in me says the bankers have more power than the cdc does.

  15. CDC and public health in general stopped caring About actual science and health 50 years ago at least. Since then, they’ve been all about promoting equality (Marxism)

  16. “The agency’s legal defense of its eviction moratorium implies that it has vast powers to order Americans around.”

    Yeah. Like, who do they think they are, the IRS?

  17. And despite the several court rulings, the CDC still extends and enforces its “mandates.” Its unconstitutional mandates. So much for the authority of courts.

  18. Not any surprise. Congress has been eager to rid themselves of any power that way they can claim to be blameless when shit hits the fan.

    Much easier to keep your job when you offload your duties to unelected bureaucrats.

  19. Has no one noticed that we have been incrementally changing from a Constitutional Republic to an administrative state? With the advent of dozens of regulatory agencies where unelected bureaucrats are given un-Constitutional authority to make rules and enforce them, outside of the legislative, executive or judicial branches of the Federal Government. These agencies are the real power in government and all have been authoritarian in rule and relentless in enforcement. Can anyone actually believe they are “free” when everything you purchase, use, or are the legal owner, is regulated by either the Federal Government or state and local governments?

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