The Volokh Conspiracy
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On Saturday, the federal government's Center for Disease Control will issue a new regulation barring eviction of millions of residential tenants around the country. If it survives likely legal challenges, the new policy would set a dangerous precedent undermining federalism, the separation of powers, and property rights. Conservatives, in particular, will have reason to regret it when a Democratic president inherits the same sweeping powers.
The CDC policy bars eviction, until the end of the year, of any residential tenant who makes a sworn declaration to the effect that they 1) have "used best efforts to obtain all available government assistance for rent or housing," 2) they expect to earn less than $99,000 ($198,000 for joint tax filers) in 2020 or did not have to report any income to the IRS in 2019, or received a stimulus check under CARES Act, 3) "the individual is unable to pay the full rent… due to substantial loss of household income… , a lay-off, or extraordinary out-of-pocket medical expenses" 4) "the individual is using best efforts to make timely partial payments that are as close to the full payment as the individual's circumstances may permit" and 5) "eviction would likely render the individual homeless—or force the individual to move into and live in close quarters in a new congregate or shared living setting."
These rules could potentially apply to a wide range of people. The income cutoff of $99,000 for an individual taxpayer is far above the national poverty line, and indeed far above the median national household income of $61,937. (which includes numerous multi-person households). The requirement that the eviction "would likely render the individual homeless—or force the individual to move into and live in close quarters in a new congregate or shared living setting" could potentially apply to any situation where the evicted person ends up living in a new home with at least one other person. Having a roommate (including a family member) surely counts as a "shared living setting." Thus, the measure would protect from potential eviction large numbers of people who are clearly not poor, and would not end up homeless if evicted.
Such sweeping action by the executive normally at least requires authorization by Congress. As co-blogger Josh Blackman explains, the claimed authorization here is 42 CFR Section 70.2 a regulation that gives the Director of the CDC the power to "take such measures to prevent such spread of the [communicable] diseases as he/she deems reasonably necessary, including inspection, fumigation, disinfection, sanitation, pest extermination, and destruction of animals or articles believed to be sources of infection." The CDC can take such measures anywhere it deems local and state regulations to be "insufficient" to limit the spread of disease across state borders.
Section 70.2 is itself just a regulation, not a law enacted by Congress; so there may be some question as to whether it itself has legislative authorization [see update below on this issue]. Assuming Section 70.2 does have such authorization, the Administration may be overreaching when it claims that it permits a sweeping nationwide eviction moratorium.
As Josh notes, the possible measures listed in the regulation—"inspection, fumigation, disinfection, sanitation, pest extermination, and destruction of animals or articles believed to be sources of infection" are all relatively narrowly targeted policies focused on specific sources of infection, not wide-ranging nationwide regulations that apply regardless of how much danger there is in the particular location. Esjudem generis, a standard canon of legal interpretation, requires that anything in a list of items in a law should be interpreted as being "of the same kind" as other items on the same list. Here, everything on the list seems to be relatively limited in scope. Thus, the regulation only permits narrowly targeted, localized restrictions.
On the other hand, the administration can argue that these specific examples are just meant to be illustrative and all they really have in common with each other is that they are all examples of measures that might be thought "reasonably necessary" to limit the spread of disease. On that theory, Section 70.2 would allow the CDC to impose almost any regulation it wanted, so long as there is some minimally plausible argument that it would limit the spread of a communicable disease.
And note that, under the text of the regulation, the CDC need not prove that the regulations in question really are "reasonably necessary" or that state restrictions really are "insufficient." They need only assert ("deem") that such is the case.
This broad interpretation of the regulation would give the executive the power to restrict almost any type of activity. Pretty much any economic transaction or movement of people and goods could potentially spread disease in some way. Nor is that authority limited to particularly deadly diseases such as Covid-19. It could just as readily apply to virtually any other communicable disease, such as the flu or even the common cold.
Every year, thousands of people die because of the flu, and restrictions on mobility or on economic and social activity could be seen as "reasonable" ways to limit its spread. 42 CFR Section 70.1 (on which the definition of disease in Section 70.2 is based) in fact defines "communicable diseases" as "illnesses due to infectious agents or their toxic products, which may be transmitted from a reservoir to a susceptible host either directly as from an infected person or animal or indirectly through the agency of an intermediate plant or animal host, vector, or the inanimate environment." Notice that this applies to any disease spread by "infectious agents," regardless of severity. The flu and the common cold clearly qualify!
If Trump can use this authority to impose a nationwide eviction moratorium, Joe Biden (or some other future president) could use it to impose a nationwide mask mandate, a nationwide lockdown, or just about any other restriction of any activity that could potentially reduce the spread of the flu, the common cold, or any other disease.
Such virtually limitless executive authority to impose restrictions and mandates would make a hash of the separation of powers, enabling the president to circumvent Congress's authority on a massive scale. It also would completely undermine any semblance of "nondelegation" restrictions on grants of power to the executive. If Section 70.2 is authorized by Congress and has the broad scope the administration claims, it would virtually gut nondelegation. If Congress can delegate the power to suppress virtually any activity of any kind, so long as the CDC claims that doing so is "reasonably necessary" to reduce the spread of disease, it is hard to see how any meaningful limits on delegation would remain.
There are similar problems with the administration's ultrabroad interpretations of statutes delegating power over immigration and trade. But extending such arguments to the suppression of purely domestic economic and social activity further exacerbates the danger.
The administration's position threatens federalism, as much as separation of powers. If the executive can suppress pretty much any type of local activity so long as the CDC claims that it risks transmitting contagious diseases and state law is "insufficient," it can intrude in numerous areas of public policy that would otherwise be left to state or local control. At the very least, displacement of state or local power by the the feds would require congressional legislation, not just executive whim. Conservatives who may think such power can safely be entrusted to Trump will not be happy the next time a Democrat wields it, as could well happen as soon as next January.
A sweeping nationwide eviction moratorium is also a massive infringement on private property rights. Landlords may be stuck holding the bag for numerous tenants who refuse to pay. The same logic that justifies the moratorium can also be used to authorize virtually any other restriction on property rights, so long as the CDC claims that imposing it might limit the spread of some communicable disease. And that can be said of almost any regulation limiting property rights. This measure and the dangerously broad logic underlying it is yet another addition to the Trump administration's already terrible record on property rights.
Josh Blackman posits that Congress will eventually enact legislation compensating landlords. But it is far from clear that will actually happen, and especially if it will happen fast enough to keep many smaller landlords from falling into dire financial straits. The same goes for efforts to recoup unpaid rent from tenants when the moratorium ends.
Moreover, whoever wins the presidential election might have strong political incentives to extend the moratorium for months to come. After all, the broad power implied by the administration's interpretation of Section 70.2 does not impose any time limits, or any limitations based on the severity of the disease threat the regulations are supposedly combating. Even after a Covid vaccine is discovered and deployed, the administration could potentially argue that continuing the moratorium is necessary, because the vaccine may not be 100% effective, and thus some disease risk remains.
Landlords could potentially recoup their losses by filing lawsuits under the Takings Clause of the Fifth Amendment. In my view, this sort of measure probably should be considered a taking. But courts have been reluctant to rule that state-imposed rent moratoria are takings, and the same deference is likely to be applied to a federal policy.
The administration's immigration restrictions are currently being challenged on nondelegation grounds, and similar lawsuits will likely be filed against the eviction moratorium. Hopefully, the plaintiffs will prevail in both cases. That may be the best prospect for overturning this measure in court.
Alternatively, the canon against interpreting statutes in ways that "raise constitutional problems" will lead courts to interpret Section 70.2 and its authorizing statute narrowly, thereby invalidating the moratorium, but preserving the statutes and regulations as sources of authority for more narrowly targeted public health measures.
Some might argue that this action will not set a dangerous precedent because the authority to impose moratoria and other restrictions created by Section 70.2 is given to the head of the CDC, an expert agency that is supposed to be guided by scientific evidence, not political or ideological imperatives. But the CDC is hardly immune to political pressure from the president and other politicians, as shown by a variety of instances where the Trump administration has bent the agency to its will. It is likely that political pressure played a significant role in this policy, as well. Moreover, even the most expert bureaucrats often have political agendas of their own. Rarely, if ever, is there such a thing as "public health" policy determined purely by technical scientific considerations without reference to morality or ideology.
Finally, it is worth noting that this sweeping moratorium is unnecessary, as well as illegal. There is no massive eviction crisis in the United States. To the contrary, eviction rates have been below normal levels since the start of the Coronavirus crisis in March, as was also true during previous recessions. And that has been the case even in areas where there are no local eviction moratoria. Barring extreme malfeasance of some kind, most landlords do not want to evict tenants during an economic crisis, if only because they know it will be hard to get new ones able to pay as much or more.
If the federal government nonetheless imposes sweeping eviction moratoria, that will incentivize landlords to raise rents or take on fewer tenants in the future, in order to guard against such policies. That will predictably reduce the available housing stock for tenants, especially the poor. The same goes if landlords have to leave the industry because they go bankrupt or otherwise lose large amounts of money.
To the extent that some kind of government assistance for needy tenants is desirable during an economic crisis, it is best-provided in the more targeted form of subsidies for poor tenants who otherwise cannot pay, not sweeping eviction moratoria that apply to millions of non-poor tenants, and leave landlords holding the bag.
UPDATE: I have made a few minor additions to this post.
UPDATE #2: The statute authorizing Section 70.2 is apparently 42 U.S.C. Section 264(a), which reads as follows:
The Surgeon General, with the approval of the [HHS] Secretary, 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. 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.
The wording here is very similar to that of the regulation. It therefore raises the same sorts of issues as those described above with respect to 42 CFR Section 70.2. Most obviously, the broad interpretation necessary to justify the eviction moratorium raises nondelegation problems, and poses a grave threat to federalism, the separation of powers, and property rights.
The other interesting thing about 42 USC Section 264(a) is that it delegates the relevant authority to the Surgeon General, rather than the Director of the CDC, as Section 70.2 does. I am not sure whether that makes the regulation illegal. Perhaps the Surgeon General can somehow delegate his power to the director. At least for the moment, I will leave this particular issue to others with greater relevant expertise on the relationship between the Surgeon General and the CDC.