CDC

Federal District Court Rules Against CDC Eviction Moratorium

There are now two district court decisions ruling against the moratorium and two upholding it.

|

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.

NEXT: Some History of Science

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Not addressed was the taking issue under 5A

    While the moritorium technically only delays payment of rent, collectibility of past due rent becomes very doubtful after 2 months, even with a judgment.

    1. So what? That doesn’t make it a taking.

      1. If its not a taking – the what is it government forced charity?

        Occupation of your premise by third party without compensation

        1. The government isn’t occupying anything. It’s a rent control measure. Rent control measures are a regulation and not a taking.

          1. Regulations are a taking by the plain meaning of the word, regardless of the idiotic case law following Penn Central.

            1. Actually not. If the government temporarily denies you revenue from your property, but you still own it, the government has only reduced your revenue, not taken your property.

              1. Do you not have any property interest in your revenue?

                Ownership is a bundle of rights, take enough pieces from the bundle and you have a taking. It seems that the eviction moratorium has taken every stick from the bundle except, “Gets to pay the property tax.”

              2. So by your logic, it’s not imprisonment if the government only locks you up for half a day at a time? After all, they’ve only reduced your freedom, not taken it away.

                Or how about your First Amendment rights? By your logic, it’s okay to require you to submit every post to a government censor who will “copyedit” your submission and cut out half of it but allow the other half through.

                I will concede that your view is consistent with SCOTUS precedent on what constitutes a “taking”. It is still wrong and stupid. If my property is worth $100 and government action makes it worth only $90, that’s a taking and is supposed to require due process.

          2. “The government isn’t occupying anything. It’s a rent control measure. Rent control measures are a regulation and not a taking.”

            Even if the rent is fixed at zero?

      2. That doesn’t make it a taking.

        It is if we decide it is. That is, unless you’ve already abandoned your argument that there’s no logic or rules for language usage.

        1. “Taking” is a legal concept, not merely a language concept. And you are pretending not to know the difference.

        2. “When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.”

    2. Inverse condemnation claims require individual proof of damages, unlike this challenge under the APA which only requires proof that some plaintiff has been harmed.

  2. Interesting. Kinda reminds me of Yates where a court found a clearly overbroad decision so it made stuff up and looked elsewhere to try to limit it.

    Which, there really ought to be a way to do and say that that without this strained analysis but oh well.

  3. Evictions are outside the jurisdiction of the CDC. Not aware of any study on its public health impact. Left wing ideologues are abusing their positions and should be fired from the CDC. Trump was weak. He should have fired all people in policy positions the day of his inauguration.

    1. They feel they’re invincible. They’ve just agreed to print $2 trillion and further destroy our currency for their friends.

      They need to be exterminated.

  4. ” . . . including some reasons why I am skeptical of claims that the order really is needed to prevent the spread of Covid.”

    We cannot prevent the spread of the Communist Chinese Virus, anymore than we can prevent the spread of any other virus, down to the common cold.
    We can take the same (voluntary) precautions that have proven successful in reducing the spread of every other virus, but we have never needed to destroy the country or economy to do so.

    1. Long to be comment – ” including some reasons why I am skeptical of claims that the order really is needed to prevent the spread of Covid.””

      CDC has not been the gold standard for the providing good advice for protocols to mitigate the spread of Covid. Today I met with two new clients, both of whom had received their second vaccine in January, were following CDC guidelines to by wearing their masks “because, they could still spread Covid” – theoritically possible, but extremely & remotely unlikely.

  5. You could completely stop transmission of the virus by killing all the potential carrier people. Would the government argue that is within the scope of do whatever is necessary?

    1. Well, yes… but that approach of course is barred by several constitutional provisions.

  6. I will say this is at least a lot more defensible than the first one. The statutory issues are complex, and it’s at least possible that Biden can’t do this without a more specific authorization from Congress.

    I still maintain, however, that the commerce clause argument, under current precedent, is frivolous. Aggregated, the rental property market clearly has a substantial effect on interstate commerce, and that’s all that is required under the caselaw.

    1. That ‘under current precedent’ is doing all the work: The whole point of current interstate commerce clause precedent is to convert a limited power into a general federal authority to regulate basically everything.

      1. It’s doing a lot of work because we live in a common law system where precedent does all the work for lower courts.

    2. What’s frivolous is the caselaw interpreting the commerce clause.

  7. It’s worth calling attention to the judge’s observation that the exceptions to the eviction moratorium (e.g. for criminal behavior) undermine its rationale. Tenants evicted for cause other than failure to pay rent are no less likely to spread disease.

    Despite the absence of a universal injunction, the CDC order has been formally set aside under the APA. Is it invalid in the entire United States pending an appeals court order to the contrary?

  8. 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).

    Imagine what the CDC under Reagan’s administration could have done with such vague and unlimited powers in an attempt to reduce the spread of AIDS.

    1. If that sort of reasoning actually worked on Democrats, there’d still be a filibuster for judicial nominees.

      The reality is that the left knows they’re 100% in charge of the bureaucracy when in office, and 90% in charge when Republicans are in office, so they’re never particularly afraid of giving bureaucrats more power.

    2. Complete ban on sodomy and immigration from Haiti until there is an effective vaccine.

  9. The grant of authority is so broad as defined by the CDC that it would allow euthanizing people who tested positive or had merely been exposed to covid.

  10. If promoting “public health” is all the CDC needs, can it order all black males locked up? After all, the left does tell us that “gun violence is a public health problem.”

  11. Calabrese…good Italian judge…most Italians are conservative now which is why Democrat Presidents never nominate an Italian but so often nominate Jews…why? Bias? Anti-Italian bigotry?

  12. As to the rhetorical question: “Do you really want the likes of Trump, Ted Cruz, or Josh Hawley to have that kind of power?”
    My response to this question is that it is virtually impossible that I would prefer the elected officials above to ANY Bureaucrat’s exercise of ANY POWER.
    I would prefer that the CDC and all health agencies be striped of all power over me, my health or what I can or cannot do. They can make recommendations, but should not issue orders.

  13. . . . raise a serious question whether Congress violated the Constitution by granting such a broad delegation of power unbounded by clear limitations or principles.

    There it is again. Some judges insist that to prove there is some limit to a law, it must be seen to stop short of being fully effective at effecting a legitimate end. Sort of makes sense. If the law fully accomplished its end before reaching the limit, who could say the law had been limited?

    1. ” Some judges insist that to prove there is some limit to a law, it must be seen to stop short of being fully effective at effecting a legitimate end.”

      The reason there must be some limits to the law, is that there are actual limits in the Constitution. Like Congress’ regulatory power being limited to interstate commerce.

Please to post comments