The Volokh Conspiracy
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Yesterday, Judge J. Philip Calabrese of the federal district court for the Northern District of Ohio ruled that the Center for Disease Control's nationwide moratorium on evictions exceeds the agencies authority. The moratorium was first instituted under the Trump administration in September, and then reinstated by Biden after it had expired.
The decision in Skyworks v. CDC is the second district court ruling against the moratorium. There have also been two district court decisions upholding it. I reviewed the three earlier decisions here.
Unlike Terkel v. CDC, the previous ruling against the legality of the moratorium, Judge Calabrese's decision in Skyworks focuses primarily on statutory issues rather than constitutional ones. Judge Calabrese concludes that the CDC order goes beyond the authority delegated to the agency it by Congress:
The most natural and logical reading of the statute as a whole does not extend the CDC's power as far as Defendants maintain. Such a broad reading of the statute, and the term "other measures" [to control the spread of disease] in particular, would authorize action with few, if any, limits—tantamount to creating a general federal police power. It would also implicate serious constitutional concerns, which Plaintiffs did not raise here. See Terkel v. Centers for Disease Control & Prevention, ___ F. Supp. 3d ____, 2021 WL 742877, at *4–6 (E.D. Tex. Feb. 25, 2021) (declaring that the moratorium exceeds the scope of federal power the Commerce Clause permits), appeal filed, No. 21-40137 (5th Cir. 2021). But the text does not authorize such boundless action or depend on the judgment of the Director of the CDC or other experts for its limits. The eviction moratorium in the CDC's orders exceeds the statutory authority Congress gave the agency.
Judge Calabrese recognizes that part of the authorizing statute, 42 U.S.C. Section 264(a) appears to give the CDC director virtually unlimited authority 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." However, he emphasizes that this passage must be read in conjunction with the rest of the statute, which imposes tighter limits:
In the statute's first sentence, Congress scarcely limits the power of the agency to accomplish this purpose, relying on its expert "judgment" of what is "necessary to prevent the introduction, transmission, or spread" of disease…. Standing alone, that first sentence sweeps broadly and appears to support Defendants' argument. If that were as far as the statute went, however, a reading that stopped there would likely raise a serious question whether Congress violated the Constitution by granting such a broad delegation of power unbounded by clear limitations or principles…..
But the statute's first sentence does not stand alone. Its second sentence provides additional clarity and direction, both by virtue of following the first sentence and by expressly tying the first sentence to the power Congress authorized the agency to exercise. Id. ("For purposes of carrying out and enforcing such regulations . . . ."). This second sentence then lists illustrative examples of the types of actions the CDC may take. For example, the statute contemplates the "inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles." Id. Tying these actions to "animals or articles" links the agency's power to specific, tangible things on which the agency may act. Even a reading of the statute that links "destruction" to "animals or articles" leaves the other actions in the statute (inspection, fumigation, disinfection, sanitation, and pest extermination), which by their common meanings and understandings are tied to specific, identifiable properties. And the next limitation in the statute reinforces the agency's targeted power: "found to be so infected or contaminated as to be sources of dangerous infection to human beings." Id. With this language, Congress directs the agency to act on specific animals or articles which are themselves infected or a source of contagion that present a risk of transmission to other people.
That takes the Court to the final words of the first subsection of the statute, "and other measures, as in his judgment may be necessary," which at bottom drive the dispute between the parties. Defendants argue that the statute authorizes other measures beyond those specified. After all, the text uses examples and does not exhaust the range of permissible actions the agency may take. But to read the words "other measures" as Defendants propose would divorce them from their context and take them in isolation without regard for what came before. This the Court may not do….
First, following the list of examples provided, "other measures" must be reasonably of the type Congress contemplated in the statutory text—fumigation, disinfection, destruction of animals or things, or other measures reasonably of this type.
Second, Congress directed the actions set forth in Section 361 to certain animals or articles, those so infected as to be a dangerous source of infection to people. On the face of the statute, the agency must direct other measures to specific targets "found" to be sources of infection—not to amorphous disease spread but, for example, to actually infected animals, or at least those likely to be, which also have the required nexus with interstate or foreign commerce.
Third, the common meaning of the word "article" does not extend the agency's reach to an action such as evictions. As used in the statute, an article means "a particular object or item….."
Judge Calabrese's ruling focuses on the statutory language. But, as he notes, it is informed by the fact that accepting the federal government's position on scope of the power delegated to the CDC would "raise a serious question whether Congress violated the Constitution by granting such a broad delegation of power unbounded by clear limitations or principles." I expanded on this nondelegation issue in greater detail here and here.
To my mind, Judge Calabrese's ruling is very well-reasoned, much more so than the earlier ruling against the moratorium in the Terkel case, which held that the moratorium exceeds the scope of federal power under the Commerce Clause. I believe the latter result is right under the text and original meaning of the Constitution, but the court had difficulty distinguishing the moratorium from existing Supreme Court Commerce Clause precedent.
Judge Calabrese's ruling includes a declaratory judgment stating that the CDC exceeded its authority, but does not impose an injunction ordering the agency to stop enforcing the moratorium—and certainly not a nationwide injunction. Therefore, at least for the moment, the decision will have little effect on enforcement of the moratorium beyond the plaintiffs in the specific case.
We now have four district court rulings on the legality of the moratorium, with two supporting each side of the issue. The two judge who struck down the order are both conservative Trump appointees. But so is one of those who upheld it. It is worth noting, also, that order was first issued under the Trump administration, and many of the cases challenging it began before the transfer of power.
Despite the above, it is possible that the litigation will eventually divide people along standard right-left ideological lines. That development may be unavoidable. But before concluding that the CDC order is legitimate, I would urge liberals to consider whether they really want the next Republican administration to have the authority to suppress virtually any activity of any kind, so long as the CDC can assert that doing so would reduce the spread of disease even in a small way (and doesn't have to prove that it will actually do so). Do you really want the likes of Trump, Ted Cruz, or Josh Hawley to have that kind of power?
Meanwhile, the "stimulus" bill recently enacted by Congress does not include a statutory extension of the moratorium. So the issue of whether the CDC acted beyond the authority delegated to by previous statutes remains a live one. At this point, it is safe to say that the legal battle over this issue will continue for some time to come, especially if (as seems likely) the Biden administration extends the CDC order beyond its current March 31 expiration date.
I discussed the issues at stake in greater detail here, including some reasons why I am skeptical of claims that the order really is needed to prevent the spread of Covid.
NOTE: The plaintiffs in some of the lawsuits against the eviction moratorium, including the Skyworks case, are represented by the Pacific Legal Foundation, where my wife works. I myself have played a minor (unpaid) role in advising PLF on this litigation.