Nondelegation

Sixth Circuit Concludes CDC Eviction Moratorium Is Unlawful

The Sixth Circuit's decision is at odds with that of the D.C. Circuit, and features a Judge Thapar concurrence on delegation.

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Today a unanimous panel of the U.S. Court of Appeals for the Sixth Circuit concluded, on the merits, that that Center for Disease Control and Prevention's Eviction Moratorium is unlawful in Tiger Lily, LLC v. HUD. This decision is no surprise because the Sixth Circuit had previously concluded that the federal government was unlikely to prevail on the merits when considering, and rejecting, the government's plea for a stay of the district court's decision against the CDC. (Ilya blogged on that decision here.)

Judge Bush's opinion for the court is straightforward. Interpreting the relevant statutory provisions, Judge Bush explains why the CDC is asserting authority that Congress never delegated to it.

we conclude that the first sentence of § 264(a) authorizes the Secretary to take action and the second dictates what actions he may take. That means that if the CDC has the authority to impose a nationwide eviction moratorium, it must come from the second sentence of § 264(a). The government does not argue that it does, so we need not belabor the point. We adhere to our prior reasoning. See Tiger Lily, 992 F.3d at 522–23. Applying the ejusdem generis canon of statutory construction, the residual phrase in the second sentence of § 264(a)—which allows the Secretary to take "other measures" he deems necessary to stop the spread of disease— encompasses measures that are similar to inspection, fumigation, destruction of animals, and the like. Id. Plainly, an eviction moratorium does not fit that mold.

What's more, even if we construed the phrase "other measures" more expansively, we cannot read § 264(a) to grant the CDC the power to insert itself into the landlord-tenant relationship without clear textual evidence of Congress's intent to do so. Id. at 523. Our reading of the statute's text accords with the principle that "Congress does not casually authorize administrative agencies to interpret a statute to push the limit of congressional authority." Solid Waste Agency of N. Cook Cnty. v. U.S. Army Corps of Eng'rs, 531 U.S. 159, 172–73 (2001). That principle has yet greater force when "the administrative interpretation alters the federal state framework by permitting federal encroachment upon a traditional state power," id. at 173, like landlord-tenant relations, see Lindsey v. Normet, 405 U.S. 56, 68 (1972) ("The Constitution has not federalized the substantive law of landlord-tenant relations."). Agencies cannot discover in a broadly worded statute authority to supersede state landlord-tenant law. Instead, Congress must "enact exceedingly clear language if it wishes to significantly alter the balance between federal and state power and the power of the Government over private property." U.S. Forest Serv. v. Cowpasture River Pres. Ass'n, 140 S. Ct. 1837, 1849–1850 (2020). The absence of any such clarity in § 264(a) indicates that the CDC cannot nationalize landlord-tenant law.

Were that not enough, Judge Bush notes that the CDC's more expansive interpretation of the statute would raise nondelegation concerns, as it would authorize unbounded regulatory authority. [Relatedly, in a forthcoming paper I suggest that one way for courts to further invigorate the nondelegation doctrine is to focus carefully on whether the statute at issue should be read to delegate the power at issue.]

Of note, this decision entrenches the circuit split between the Sixth Circuit and the D.C. Circuit on the lawfulness of the CDC's moratorium. While we cannot know for sure whether this issue will reach the Supreme Court (particularly if the moratorium is not extended), there is a strong indication that at least five justices agree with the Sixth Circuit's take.

Judge Thapar wrote a separate concurrence emphasizing the nondelegation concerns raised by the government's arguments. His concurrence is below the fold.

If the separation of powers meant anything to our framers, it meant that the three necessary ingredients to deprive a person of liberty or property—the power to make rules, to enforce them, and to judge their violations—could never fall into the same hands. For that reason, our Founders did not just "split the atom of sovereignty" by dividing powers between the Federal Government and the States. Alden v. Maine, 527 U.S. 706, 751 (1999) (cleaned up). They also separated powers within the Federal Government: The legislative power went to Congress; the executive to the president; and the judicial to the courts. That is the equilibrium the Constitution demands. And when one branch impermissibly delegates its powers to another, that balance is broken.

Of the three branches, Congress is the most responsive to the will of the people. And the Founders designed it that way for a reason: Congress wields the formidable power of "prescrib[ing] the rules by which the duties and rights of every citizen are to be regulated." The Federalist No. 78, at 465 (Alexander Hamilton) (Clinton Rossiter ed., 1961). If legislators misused this power, the people could respond, and respond swiftly.

So, naturally, Congress has an incentive to insulate itself from the consequences of hard choices. That was clear from the start. Consider one prominent example. The Constitution empowers Congress "[t]o establish Post Offices and post Roads." U.S. Const. art. I, § 8, cl. 7. For 18th-century Americans, this was high-stakes stuff. A federal post road could change a town's fortunes overnight, so debates over their placement captured the national attention. When the Second Congress debated an early bill laying out a detailed plan for post roads running from Maine to Georgia, one Congress introduced an amendment "to strike the enumerated routes and replace them with the provision 'by such route as the President of the United States shall, from time to time, cause to be established.'" Ilan Wurman, Nondelegation at the Founding, 130 Yale
L.J. 1490, 1506 (2021). In other words, the amendment promised to transfer this set of hard choices from Congress to the executive branch.

It was a clever dodge, but it didn't work. Congress rejected the proposal after several prominent Congressmen raised a nondelegation challenge. See id. at 1506–12. James Madison was representative when he argued that this proposal to "alienat[e] the powers of the House . . . would be a violation of the Constitution." Id. at 1507.

Madison was right. The constitutional design is frustrated if "Congress could merely announce vague aspirations and then assign others the responsibility of adopting legislation to realize its goals." Gundy v. United States, 139 S. Ct. 2116, 2133 (2019) (Gorsuch, J., dissenting). By shifting responsibility to a less accountable branch, Congress protects itself from political censure—and deprives the people of the say the framers intended them to have.

And yet, over the years, the guardrails have crumbled. See, e.g., Dep't. of Transp. v.
Ass'n of Am. R.Rs., 575 U.S. 43, 77 (2015) (Thomas, J., concurring in judgment) (noting that the Court's test for enforcing the nondelegation doctrine "largely abdicates our duty to enforce that prohibition"). Thus, the Supreme Court should consider breathing new life into the doctrine.

But one common critique stands in the way: Congress simply isn't up to the job. According to some, Congress is incapable of acting quickly in response to emergencies. Others say modern society is too complex to be run by legislators—better to leave it to the agency bureaucrats. In light of the original meaning, history, and structure of our Constitution, these arguments should not carry any weight. But even on their own terms, neither argument washes.

Start with concerns that Congress cannot act fast enough in a crisis. The government's response to the coronavirus pandemic proves otherwise. Congress acted swiftly to pass broad relief for the general public. But it also switched out the hammer for the scalpel when necessary.

Take student veterans as an example. As the pandemic tore through the country,
universities abruptly moved their lessons online. Under a Department of Veterans Affairs regulation, student veterans faced the specter of losing their housing stipends under the G.I. Bill if they stopped attending in-person classes. See 38 C.F.R. § 21.9640(b)(1)(ii). The VA could have changed that regulation through the Administrative Procedure Act's emergency rulemaking provision. See 5 U.S.C. § 553(b)(3)(B), (d)(3). But Congress beat the administrative state to the punch. On March 21, 2020, just two days after California announced the country's first statewide stay-at-home order, Congress passed Public Law 116-128 to temporarily override the VA regulation and prevent any disruption in veterans' educational benefits.

The contention that Congress lacks the expertise to legislate on complicated topics
appears similarly attractive at first glance. But the executive branch need not have a monopoly on experts. For example, Congress manages to pass tax legislation and annual budgets without outsourcing the job to the administrative agencies. If you took the critics of the nondelegation doctrine seriously, you might think that only the administrative state could predict how these laws would affect our nation's long-term fiscal health. But Congress has famously maintained a strong grip on these issues.

How? It has experts of its own. Professors Cross and Gluck have meticulously documented how nonpartisan structures like the Congressional Budget Office and the Joint Committee on Taxation—which are housed under Article I and ultimately accountable to Congress's leadership—have provided Congress with "technical expertise" that "safeguards the legislative process from executive and interest-group encroachment." Jesse M. Cross & Abbe R. Gluck, The Congressional Bureaucracy, 168 U. Pa. L. Rev. 1541, 1544 (2020). If Congress can manage the world-class economists at the CBO, then there's no reason to think it could not "meaningfully reassert itself as the top-line decision-maker on [other] important matters pertaining to our administrative state." Philip Wallach & Kevin R. Kosar, The Case for a Congressional Regulation Office, 48 Nat'l Affs. (Fall 2016). A strong nondelegation doctrine could compel Congress to strengthen its roster of expert institutions.

What's the difference between executive-branch experts and congressional ones? Executive-branch experts make regulations; congressional experts make recommendations. Congressional bureaucracy leaves the law-making power with the people's representatives—right where the Founders put it. Regardless of who came up with the idea, "[t]he sovereign people would know, without ambiguity, whom to hold accountable for the laws they would have to follow." Gundy, 139 S. Ct. at 2134 (Gorsuch, J., dissenting).

This case proves the point. As is often true, there are two sides to today's story. Compare Matthew Haag, A Landlord Says Her Tenants Are Terrorizing Her. She Can't Evict Them, N.Y. Times (July 9, 2021), with Eviction Moratoriums Are Expiring, but Millions of Tenants Are Still Relying on Them, N.Y. Times (June 16, 2021). It is not our job as judges to make legislative rules that favor one side or another. But nor should it be the job of bureaucrats embedded in the executive branch. While landlords and tenants likely disagree on much, there is one thing both deserve: for their problems to be resolved by their elected representatives.

NEXT: Biden Administration Moves Swiftly on Judicial Nominations (Updated)

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  1. The DC Circuit partly justified the erroneous holding on the concept that the tenants remained liable on the past due rent.

    The DC CA failed to realize the economic reality that the past due rent collectibility is very near zero once the rent is past due by more than 2-3 months.

    1. Failed to realize, failed to care. I wouldn’t want to bet which it was.

      1. it is easy to make decision when you don’t have to deal with the ramifications. They don’t have to care when its not their problem.

        that it has taken so long to stop an illegal action should truly depress those who respect the rule of law

  2. I love the reference to post roads because it seems so generalizable that administrative law itself, and the entire Code of Federal Regulations, might fall, thus requiring Congress and the President to approve every single detail in those regulations as a law in order to change it. I would love to see that happen, especially if combined with a sunset law as they have in Texas. Congress would be kept so busy just “re-upping” existing regulations that they’d have little or no time to engage in further mischief.

  3. The thrust of the decision is that state landlord tenant law trumps a federal emergency declaration during a deadly pandemic. Reflect on that principle, and imagine a far worse pandemic—one with potential to kill a substantial fraction of everyone.

    Consider:

    Applying the ejusdem generis canon of statutory construction, the residual phrase in the second sentence of § 264(a)—which allows the Secretary to take “other measures” he deems necessary to stop the spread of disease— encompasses measures that are similar to inspection, fumigation, destruction of animals, and the like. Id. Plainly, an eviction moratorium does not fit that mold.

    What is described as plain is anything but. If you insist the terms evaluated must be considered without regard to ability to check contagion, then even the items on the list are dissimilar. If the test is the ability to check contagion—as it ought to be—the eviction moratorium can be justified on that basis.

    The better question is which authority ought to do the justifying. Not the court, I think. Political branches must be held to account politically for their emergency policies. That cannot happen if courts take over.

    1. The idea that just because the Executive branch says “EMERGENCY” we can forgo Constitutional protections and Separation of Powers is crazy.

      If its important enough, then Congress can pass a more specific law.

      1. NoobyNoobyDoo, or, if it is important enough, congress may elect not to pass a more specific law. Who knows, maybe congress will be under malign control of a political party opposite the executive, and wish to harm the nation, in the hope of embarrassing the president’s chances in the next election. As willingness to harm the nation—use as a negotiating tool of threats against the full faith and credit of the nation, for instance—has increased among legislators, political accountability for legislators has declined proportionately. Experience has taught us that political accountability for the executive is generally stronger.

  4. Is there an important legal distinction in labeling the CDC action unlawful, rather than illegal? Please excuse my non-lawyer ignorance.

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