Nondelegation

Yet Another Federal Court Rules Against the CDC Eviction Moratorium

This ruling has some distinctive elements, and may have a broader impact than previous decisions.

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Earlier today, the Judge Dabney Friedrich of the US District Court for the District of Columbia ruled that the nationwide eviction moratorium order issued by the Centers for Disease Control is illegal. The ruling in Alabama Association of Realtors v. Department of Health and Human Services is yet another setback for the CDC eviction moratorium, which was first issued by the Trump administration last September and then twice revived and extended under Biden (most recently until June 30). Today's ruling is the fifth court decision holding that the eviction moratorium is illegal, including an appellate court decision by the Sixth Circuit, and three previous district court rulings (see here and here). Two trial court decisions have upheld the order.

Today's ruling is similar to most of the previous decisions that went against the CDC order, in so far as they all conclude that the government's position would give the CDC sweeping power that goes far beyond anything authorized by Congress. But it differs from the earlier cases because it addresses the issue within the context of the Supreme Court's famous ruling in Chevron v. Natural Resources Defense Council (1984), which requires federal courts to defer to "reasonable" executive agency interpretations of statutes in cases where the agency is tasked with enforcing the law in question, and Congress has not specifically addressed the question at issue. The Biden administration argues that the CDC deserves Chevron deference in this case. The court wasn't persuaded.

The statute the CDC relies on, 42 U.S.C. Section 264(a), gives the CDC director the authority "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." That includes "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."

Following Supreme Court precedent, Judge Friedrich notes that, before extending deference to a "reasonable" agency interpretation under "step 2" of Chevron, a federal court must first consider whether the issue in question can be resolved through "ordinary tools" of statutory construction. Like previous rulings against the moratorium, she concludes that the kind of broad delegation of power claimed by the CDC would raise serious constitutional problems, and therefore the statute must be interpreted to avoid such problems, if possible:

[T]he canon of constitutional avoidance instructs that a court shall construe a
statute to avoid serious constitutional problems unless such a construction is contrary to the clear intent of Congress…. An overly expansive reading of the statute that extends a nearly unlimited grant of legislative power to the Secretary would raise serious constitutional concerns, as other courts have found. See, e.g., Skyworks, 2021 WL 911720, at *9 (noting that such a reading would raise doubts as to "whether Congress violated the Constitution by granting such a broad delegation of power unbounded by clear limitations or principles."); Tiger Lily, 992 F.3d at 523 (same); id. ("[W]e cannot read the Public Health Service Act to grant the CDC power to insert itself into the landlord-tenant relationship without some clear, unequivocal textual evidence of Congress's intent to do so")…. Congress did not express a clear intent to grant the Secretary such sweeping authority.

Judge Friedrich also concludes that the same issue prevents Chevron deference under the so-called "major questions" doctrine, which creates a presumption against the conclusion that Congress delegates major policy issues to executive agencies:

[T]he major questions doctrine is based on the same principle: courts "expect
Congress to speak clearly if it wishes to assign to an agency decisions of vast 'economic and political significance.'" Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 324 (2014) (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) (emphasis added));…. There is no question that the decision to impose a nationwide moratorium on evictions is one "of vast economic and political significance." Util. Air Regul. Grp., 573 U.S. at 324….

Not only does the moratorium have substantial economic effects,… eviction moratoria have been the subject of "earnest and profound debate across the country," Gonzales v. Oregon, 546 U.S. 243, 267 (2006)…. At least forty-three states and the District of Columbia have imposed state-based eviction moratoria at some point during the COVID-19 pandemic, see 86 Fed. Reg. 16,731, 16,734, though, as the CDC noted in its most recent extension of the CDC Order, these protections either "have expired or are set to expire in many jurisdictions," id. at 16,737 n.35. Congress itself has twice addressed the moratorium on a nationwide-level—once through the CARES Act, see Pub. L. No. 116-136, § 4024, 134 Stat. 281 (2020), and again through the Consolidated Appropriations Act….

Accepting the Department's expansive interpretation of the Act would mean that
Congress delegated to the Secretary the authority to resolve not only this important question, but endless others that are also subject to "earnest and profound debate across the country." Gonzales, 546 U.S. at 267…. Under its reading, so long as the Secretary can make a determination that a given measure is "necessary" to combat the interstate or international spread of disease, there is no limit to the reach of his authority."

The line between a "major question" as opposed to a minor one is far from clear. But, if anything qualifies as "major," it is surely the power to suppress virtually any activity, so long as the CDC claims that doing so might reduce the spread of contagious disease. For reasons described in my very first post on this issue, that power would extend to almost any human interaction of any kind, especially since the statute's reach is not limited by the severity of the disease (even the common cold will do!), or by the extent of reduction in spread caused by the CDC's measure. Indeed, the CDC isn't even required to prove that the claimed reduction will actually happen.

As I have argued, and several court decisions have now ruled, the sweeping authority claimed by the CDC violates constitutional nondelegation principles. For much the same reasons, it also runs afoul of the "major question" constraint on Chevron.

Judge Friedrich's analysis of the Chevron issue strikes me as compelling. At the very least, it seems to me unlikely that any judge otherwise inclined to rule against the CDC order will decide to uphold it based on Chevron. Whatever you think of the ongoing broader debate over Chevron, (which many legal scholars and judges would like to overrule or severely limit), the deference dog will not hunt here.

Previous rulings against the eviction moratorium have stopped short of issuing a nationwide injunction blocking enforcement. That, in turn, has allowed the CDC to continue enforcing the order against landlords who are not parties to the cases in question. Judge Friedrich, too, did not issue a nationwide injunction, or indeed any kind of injunction. She instead limits herself only to vacating the order. But she also emphasizes that this vacatur goes beyond the parties:

Both parties agree that if the Court concludes that the Secretary exceeded his authority by issuing the CDC Order, vacatur is the appropriate remedy…  Nonetheless, the Department urges the Court to limit any vacatur order to the plaintiffs with standing before this Court….

This position is "at odds with settled precedent." O.A. v. Trump, 404 F. Supp. 3d 109, 153 (D.D.C. 2019). This Circuit has instructed that when "regulations are unlawful, the ordinary result is that the rules are vacated—not that their application to the individual petitioner is proscribed." Nat'l Mining Ass'n v. U.S. Army Corps of Eng'rs, 145 F.3d 1399, 1409 (D.C. Cir. 1998) (internal quotation marks omitted); see also O.A., 404 F. Supp. 3d at 109. Accordingly, consistent with the Administrative Procedure Act, 5 U.S.C. § 706(2)(A), and this Circuit's precedent, see Nat'l Mining Ass'n, 145 F.3d at 1409, the CDC Order must be set aside.

In my view, it is possible to interpret this ruling as holding that the CDC order is now invalid throughout the country, not just with respect to the parties to the case. It is worth noting that the jurisdiction of the DC Circuit extends to federal administrative agency rulings throughout the country, and thus is not limited to a specific geographic area (unlike that of most other lower federal courts).

However, I admit I am not expert on these kinds of procedural issues. My understanding from those who know more is that the reach of this type of vacatur ruling is a matter of dispute among experts. Perhaps courts will have to address the issue if the CDC continues to try to enforce the moratorium, or if tenants raise the order as a defense to eviction proceedings in state court.

The legal battle over eviction order will surely continue, at least as long as the Biden administration keeps on extending the order and trying to defend it in court. This ruling, like others before it, is likely to be appealed.

Nonetheless, the rulings against the order are now piling up. After two initial wins, the federal government has compiled an impressively long losing streak, which now includes four trial court rulings and one in an appellate court.

As I have previously noted, the rulings on this issue have—so far—largely divided judges along ideological lines, with Republican appointees (with two exceptions), ruling against the order, even as the sole Democratic-appointed judge to consider it so far, has upheld it. Judge Friedrich continues that pattern, since she as a Trump appointee (albeit one ruling against a policy initially adopted by the Trump administration). Thus, the Biden administration might hope for better results when and if the issue is considered by more liberal appellate judges.

But such a left-right split is not inevitable. For reasons I summarize here, liberals have their own reasons to be wary of the kinds of sweeping claims of authority made by the Trump and Biden administrations in these cases:

[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?

Nondelegation is far from being a principle that only helps conservatives. Aside from the CDC eviction order, the most recent important decision invoking it was a district court ruling striking down Trump's suspension of immigrant work visas.

NOTE: The plaintiffs in some of the lawsuits against the eviction moratorium 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.

UPDATE: The judge has temporarily stayed her ruling, pending appeal, though she also left open the possibility of lifting the stay before the appeal process is completed.

UPDATE #2:  In the original version of this post, I wrote that only one Republican appointee had voted to uphold the eviction ban. In reality, the figure is two (out of a total of nine GOP appointees who have ruled on the issue). I was misled by the fact that the case of Chambless Enterprises v. Redfield was heard jointly by District Judge Terry Doughty (a Trump appointee) and Magistrate Judge Karen Hayes (first appointed during the Clinton administration in 1997). I had thought that the opinion in the case was issued by the latter. But in actual fact it was Judge Doughty. I apologize for the mistake. But it only slightly alters the overall pattern of ideological division here.

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  1. That “myself” in the final sentence serves no purpose beyond weakening the writing.

    1. It’s either that or “Also, I have…”

  2. So the political puppets fool the goy into thinking they can’t be evicted because of the pandemic shutdown orders of governors, but in the end they get tossed out on the street, all according to the jewish plan to collapse the host society. Well played, extremely well played!!!

  3. Wonder if they’ll cease this:

    NCLA Cries Foul on CFPB Final Rule that Doubles Down on Unlawful Eviction Moratorium Policy

    “Undeterred by numerous challenges and court rejections across the country against the Halt Order, today CFPB implemented an Interim Final Rule, Debt Collection Practices in Connection With the Global COVID-19 Pandemic, without public comment. The CFPB rule is an unlawful agency action in violation of the Administrative Procedure Act (APA) because it requires disclosures that are not required under the Fair Debt Collection Practices Act. The FDCPA generally prohibits debt collectors from using “any false, deceptive, or misleading representations or means in connection with the collection of any debt.” The CFPB rule also violates the First Amendment of the Constitution by requiring false speech. The rule requires Plaintiffs to falsely inform tenants, in writing, that they are entitled to protection under the Halt Order, when, in fact, the Order has been deemed unenforceable by multiple judges.

  4. The notion that a power is unlimited sorts poorly with a limitation that it only applies during a pandemic emergency, and cannot reasonably be extended longer, or apply to any other subject. That is a sharp limitation indeed.

    The discussion above seems to rely also on a notion that every delegated power must fall at least somewhat short of accomplishing its legitimate constitutional purpose, or be called unlimited, and for that reason illegitimate and unconstitutional.

    To be called unlimited, powers must extend into the forbidden body of all those powers not authorized as legitimately constitutional. Those are the ones off limits. That set of forbidden powers, by definition, does not intersect at all with the set of constitutionally legitimate enumerated powers. The latter group defines the former by excluding them.

    The notion of limitation should not be construed to extend farther, or to require that even when pursuing constitutional ends by means which have not been forbidden, a power must stop short of accomplishing its legitimate objective—for no reason except to prove that a limitation applies there, too.

    These issues would be less confusing during a different kind of pandemic—for instance, a pandemic which threatened to kill indiscriminately people of all ages, amounting to a sizable percentage of everyone. In such a situation, this court’s ruling would be seen clearly for the absurdity it is.

    During that kind of pandemic, the question, “Do you really want the likes of Trump, Ted Cruz, or Josh Hawley to have that kind of power?,” fades to insignificance. My prayer then would be that the likes of those would somehow be endowed with wisdom and motivation to use such powers promptly and effectively. My fears that they would not would have nothing to do with whether they ought to have such powers, or use them.

    1. 1) Being limited to “emergencies” isn’t a sharp limitation, or really much of a limitation at all, if the people whose power is being limited are the people deciding if there’s an emergency, and how long said emergency lasts.

      2)Whether a delegated power falls short of permitting its legitimate end to be accomplished is orthogonal to what the legitimate limits of that power are. In some cases the power delegated will be surplus, in some cases inadequate, there is no magical “you get more power if you (think you) need it” clause. The power delegated is the power delegated.

      3)We are WELL into the forbidden body of all those powers not delegated. And have been since the days of FDR.

  5. You write: “It is worth noting that the jurisdiction of the DC Circuit extends to federal administrative agency rulings throughout the country, and thus is not limited to a specific geographic area (unlike that of most other lower federal courts).”

    The “specific geographic area of a” federal district court affects whether venue is proper. Don’t get me started on my pet peeve, the way that lower federal courts have misread the venue statue applicable to challenges to federal agency action in a way that allows too much judge shopping. But, assuming that venue is proper (or objections to venue are overruled or never made), I don’t think there is any difference between the D.D.C. and other federal district courts with respect to their authority to bind federal agencies nationwide or with respect to their “jurisdiction” to do so. There may be some differences between the D.C. Circuit and other circuits with respect to actions subject to direct review in a court of appeals (in some, but not all instances, limited to the D.C. Circuit), but that does not appear to be a contention here. It may be that the notion of a rule’s vacatur applies only to such direct-to-circuit reviews (in which case maybe geography matters). But I’m no expert on vacatur and the district court here seems to have held that it applies in actions filed in district court. If that is right, I don’t see how the geography matters here.

  6. I think the judge is using the an arcane method of statutory construction here. Shouldn’t the proper standard be whether he likes the result? The only widely used standard that could reach this result is the “Orange Man Bad” standard, but Biden has reissued the order, so that cannot be applied.

  7. Thanks for posting this, Prof. Somin. It’s a nice compilation of links and context, which I’ve forwarded to a colleague here in Texas who just this morning successfully represented a landlord in securing a writ of possession from a Texas Justice of the Peace, despite the tenant’s lawyer’s reliance on the CDC regulation and the declaration the tenant had made in an attempt to comply therewith.

    As per routine practice in such courts before the pandemic, when the eviction is for nonpayment of rent and the tenant offers no proof that in fact the rent has been paid (contrary to the landlord’s sworn averments), the JP is going to grant the writ without further ado. Justice of the Peace courts in Texas are not courts of record, however, and any party dissatisfied with their rulings may immediately appeal — with an automatic stay, provided a bond is posted or a pauper’s affidavit filed — for a trial de novo in the county court (a court of record), where both sides essentially must start over from scratch. That could produce a final judgment appealable to the intermediate Texas appellate courts and potentially the Texas Supreme Court.

  8. One of my better trial lawyer war stories arose from my representation of a commercial landlord in an eviction case, which the Justice of the Peace quite reasonably decided by a literal coin flip.

  9. Ilya, You wrote: The statute the CDC relies on, 42 U.S.C. Section 264(a), gives the CDC director the authority “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, in a previous post you pointed out (and the text of the statute confirms) that the statute gives this authority to *the Surgeon General* not the CDC Director. Has the issue come up in any of the rulings, do you know? Did the Surgeon General delegate this authority? Is such delegation permitted? Are there any procedural requirements for such delegation? And, relatedly, have any reasons been asked or given for why the official (Jerome Adams) with the statutory authority did not issue the the order?

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