The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
On Monday, Judge Mark Norris of the Middle District of Tennessee became the third federal judge to issue a decision holding that the Centers for Disease Control nationwide eviction moratorium is illegal. Judge Norris' ruling in Tiger Lily, LLC v. US Department of Housing and Urban Development is very similar to last week's ruling on the same issue in Skyworks v. CDC by a district court in Ohio. Like the Skyworks decision, this one holds that the CDC exceeded the authority granted to it by Congress under 42 U.S.C. Section 264(a), which gives the agency the power to "make and enforce such regulations as in [the Surgeon General's] 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." The law goes on to say that "[f]or 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."
Like the judge in Skyworks, Judge Norris concludes that this listing of examples limits the range of measures the CDC may enact:
Plaintiffs contend the CDC Director is limited to the types of measures to be undertaken…. Defendants contend she is not…. Therein lies the rub. Plaintiffs' interpretation is the more reasonable. If the Director were not limited in his or her authority, why list any specific examples of measures within that authority? Why not simply provide the Director "is authorized to make and enforce such regulations as in [her] judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases."? In other words, Defendants' theory renders the limitations of the statute—e.g. inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals, or articles to be so infected or contaminated—superfluous or surplusage….
And, like the Skyworks ruling, Judge Norris concludes that allowing the CDC to use this statute to impose an eviction moratorium would give it virtually unlimited power to suppress any activity of any kind, thereby violating the nondelegation doctrine, which limits the extent to which Congress can delegate its lawmaking power to executive agencies. That, in turn strengthens the case for giving the statute a narrower reading, under the longstanding rule that courts should, where possible, interpret federal laws in ways that avoid raising constitutional problems:
The statute before this Court sets forth a narrow list of measures which may be undertaken to make and enforce regulations necessary to prevent the spread of disease. The statute authorizes the Director to undertake certain specifically enumerated acts "and other measures, as in [her] judgment may be necessary." 42 U.S.C. § 264(a). But those "other measures" are limited by the specific examples listed. They provide the intelligible principle without which Congress' delegation of authority in this instance would be too broad to withstand Constitutional scrutiny… To ignore them creates surplusage which is also to be avoided.
It would not be reasonable had Congress delegated such broad authority nor could it constitutionally have done so. The CDC was given broad authority to make and enforce regulations, and the statute specifically identifies the measures to be taken. To hold otherwise would be to construe the statute so broadly as to grant this administrative agency unfettered power to prohibit or mandate anything, which would ignore the separation of powers and violate the non-delegation doctrine….
I discussed the nondelegation issue in greater detail in my very first post on the CDC moratorium back in September, when the order was adopted by Trump administration. It has since been reinstated by Biden after it had expired.
We now have three district court rulings striking down the CDC order, and two upholding it. I analyzed the earlier decisions here and here. It is likely that the legal battle over this issue will continue in the appellate courts - especially if, as I think likely, the Biden administration extends the eviction moratorium past its current March 31 deadline. As I noted in my last post on this issue, it is possible that the litigation over these questions will divide judges and legal commentators along ideological lines. So far, all three judges who ruled against the CDC (including, now, Judge Norris) are conservative Trump appointees; though so is one of the two judges who ruled in its favor. However, for reasons I noted here, liberals have good reason to be concerned about the dangerous precedent a ruling in favor of the CDC could set:
[B]efore 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?
Those who think the CDC can be trusted to wield such sweeping power purely based on "scientific" considerations uninfluenced by political pressure from the White House would do well to consider all the ways in which it yielded to pressure from Trump during the Covid pandemic. Moreover, there is no such thing as a purely scientific way to wield the power to shut down virtually any activity of any kind. Any such decision relies on moral, economic, and political considerations, not just technical scientific ones.
Law Professor Lindsey Wiley, a leading academic expert on public health law worries that the reasoning adopted in Skyworks and Tiger Lily could potentially lead courts to invalidate the Biden administration's order requiring the wearing of masks on various types of interstate transportation, which also relies on Section 264(a) for authorization.
I think this is unlikely because the focus on transportation is much more closely related to the purpose of preventing the "spread of communicable diseases from… from one State or possession into any other State or possession." In addition, limiting it to transportation may fall into the category of promoting the "sanitation" of "articles" that facilitate the spread of disease across state lines. In this case, the relevant "articles" would be seats and air spaces on buses, airplanes, and other modes of transportation covered by the mask order. These distinctions may be the reason why Biden's advisers concluded (correctly, in my view) that he did not have the power to order a general nationwide mask order, but could impose a much narrower one focused on transportation.
That said, if the distinctions I drew between the mask order and the eviction moratorium turn out to be wrong, I am more than happy to bite the bullet. Saving the mask mandate isn't worth the awful price of giving the executive branch virtually unlimited power to suppress any activity it wants. That's especially true in light of the fact that some 90% of Americans were routinely wearing masks by October 2020, well before Biden issued the mask order, and airlines, bus companies, and other interstate transportation providers also routinely required passengers to wear masks. It is, therefore, unlikely that that Biden order is achieving much beyond the mask-wearing that existed already. If an interstate transportation mask mandate really is necessary for some reason, Congress could enact one.
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.