The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
On Wednesday, the US Court of Appeals for the DC Circuit issued a ruling in favor of the legality of the Centers for Disease Control nationwide eviction moratorium, enacted on the theory that it would help combat the spread of the Covid-19 pandemic. The decision breaks a streak of five straight victories for plaintiffs challenging the legality of the moratorium in court. It is also at odds with a Sixth Circuit appellate ruling against the moratorium, issued in March. The moratorium was first issued by the Trump administration last September and then twice revived and extended under Biden (most recently until June 30). I summarized the important issues it raises here and here.
The DC Circuit ruling is a setback for opponents of the eviction moratorium. But it has glaring flaws that hopefully will prevent it from having much influence with other courts considering the issue.
The DC Circuit decision is not a final ruling on the merits. All it does is affirm the trial court's decision to stay enforcement of its ruling against the moratorium while the case continues to be litigated. But the appellate judges make clear that they believe the moratorium is likely legal. One of the standards for upholding the stay is whether the government is likely to prevail on the merits. The DC Circuit ruling makes clear that the judges think the answer is "yes":
First, the CDC's eviction moratorium falls within the plain text of 42 U.S.C.
§ 264(a). Congress expressly determined that responding to events that by their very
nature are unpredictable, exigent, and pose grave danger to human life and health
requires prompt and calibrated actions grounded in expert public-health judgments.
Section 264(a) authorizes the Secretary of HHS "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." 42 U.S.C. § 264(a).
Congress thereby designated the HHS Secretary the expert best positioned to determine the need for such preventative measures, twice stating that it authorizes such measures as the Secretary determines "in his judgment [are] necessary." 42 U.S.C. § 264(a). That text also makes a determination of necessity a prerequisite to any exercise of Section 264 authority, and that necessity standard constrains the granted authority in a material and substantial way.
Here, to ensure that the moratorium was tailored to the necessity that prompted
it, HHS carefully targeted it to the subset of evictions it determined to be necessary to
curb the spread of the deadly and quickly spreading Covid-19 pandemic. Notably,
Appellees do not dispute HHS's determination that the moratorium would "prevent the
[interstate] introduction, transmission, or spread" of COVID….
The big problem with this argument—pointed out by the district court in this very same case, and by several other rulings against the moratorium—is that the same reasoning would give the CDC the authority to shut down virtually any activity of any kind, as doing so can always potentially reduce the spread of a contagious disease in some way. It doesn't even have to be an especially dangerous disease, since the statute isn't limited to stopping the spread of diseases that pose unusually great risks. Reducing the spread of the common cold would be enough.
There is no "material and substantial" limit to the CDC's authority here. There isn't any real limit at all. For that reason, interpreting the statute the way the government and the DC Circuit read it violates constitutional constraints on delegation of legislative authority to executive agencies.
The DC Circuit also emphasizes the "scale and gravity" of the Covid-19 crisis, as a justification for the unprecedented nature of this moratorium. Even if that scale and gravity might have made the order a truly dire necessity when it was first issued in September and extended in January, the same cannot be said today, when widespread vaccination has massively reduced the spread of the disease.
In addition, the logic of the CDC's order assumes that there would be a large-scale eviction crisis in its absence. This was highly questionable back in September, and is even less plausible today, as the economy continues to recover rapidly. If the CDC's delegated authority is broad enough to continue the moratorium order unchanged, despite the massive changes in the conditions that supposedly make it "necessary," that just underscores the fact that government's interpretation of the "necessity" requirement imposes no real constraint on the scope of the agency's power.
The DC Circuit also claims that Congress implicitly endorsed the CDC's broad interpretation of the scope of its power when it imposed a similar moratorium in December (which expired at the end of January):
Congress has expressly recognized that the agency had the authority to issue its narrowly crafted moratorium under Section 264. Last December, rather than enact its own moratorium, Congress deliberately chose legislatively to extend the HHS moratorium and, in doing so, specifically to embrace HHS's action "under section 361 of the Public Health Service Act (42 U.S.C. 264)[.]" Consolidated Appropriations Act,2021, Pub. L. No. 116-260, div. N, title V, § 502, 134 Stat. 1182, 2078–79 (Dec. 27,2020).
This makes little sense. Congress' legislative extension of the original CDC moratorium in no way endorses the idea that the agency had the power to take that action on its own. It just means Congress wanted to (temporarily) adopt the CDC's policy, not embrace its legal reasoning. If anything, the temporary nature of Congress' extension of the moratorium implies that Congress assumed that it alone has the power to adopt such a measure, and that it would end as soon as the new legislative authorization expired. Significantly, Congress did not include any language giving the CDC the power to issue future extensions on its own, even though by this time there were already several court cases challenging the legality of the CDC order.
Of course, it's also possible (and in fact likely) most members of Congress didn't know or didn't care about the constitutional issues involved when they enacted a brief extension of the moratorium in December. The extension was part of a massive appropriations bill, and the members had many other issues on their minds, many of them more politically significant than this one. This is the kind of case that highlights the difficulties of ascribing intent to a large collective body, like Congress. Some judges and legal scholars believe that any such ascription is impossible. But even if you think it is feasible in some situations, there is no evidence that Congress intended to endorse the legality of the CDC's actions here.
The nondelegation issue and the rule that courts are required, where possible, to interpret federal law in ways that avoid constitutional problems, should have led the DC Circuit to adopt a narrower reading of 42 USC Section 264, similar to that embraced by the Sixth Circuit and the lower court in this case.
Some of the DC Circuit's other points are more reasonable. For example, the judges are probably right to conclude that an eviction moratorium is within the scope of federal power under the Commerce Clause, under current Supreme Court precedent. I discussed that issue here.
Despite its flaws, the DC Circuit ruling is a significant victory for the Biden administration. It also reinforces the emerging ideological split over the eviction moratorium litigation. As I have noted before, all of the judges who have issued rulings against the CDC order are conservative Republican appointees. With two exceptions, all the judges who voted to uphold it were appointed by Democratic presidents. The DC Circuit ruling continues that pattern: all three judges on the panel are liberal Democrats appointed by President Obama.
Such a left-right split is not inevitable. For reasons I summarize here and 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. The power to shut down virtually any activity at any time is one no administration can be trusted with. Think of what Josh Hawley, Ted Cruz, or Donald Trump might do with it, if one of them comes to power in 2024 or 2028. At the same time, I was probably naive to hope that an ideological division could be avoided over an order that combines Covid emergency measures and property rights, two issues that have repeatedly given rise to ideological splits in many state and federal courts.
Regardless, we now have a circuit split over the legality of the CDC order. That, of course, increases the likelihood that the issue will eventually get to the Supreme Court. The plaintiffs in the DC Circuit case have already asked the Court to step in and overturn the DC Circuit ruling, on an emergency basis.
The current extension of the eviction moratorium expires on June 30. I doubt the Supreme Court will move before then. But if the Biden administration extends the order again, there is a good chance the Supreme Court will take up the case. If that happens, and the current ideological division over this issue continues, the eviction moratorium is unlikely to survive, given the 6-3 conservative majority on the Court.
In the meantime, litigation over the eviction moratorium continues in several other federal courts. We may well have additional lower court rulings before June 30, even if the Supreme Court chooses not to act.
NOTE: The plaintiffs in some of the lawsuits against the eviction moratorium are represented by the Pacific Legal Foundation, where my wife works (though she is not part of the litigation team handling the issue). I myself have played a minor (unpaid) role in advising PLF on this litigation.
UPDATE: 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.