The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
As co-blogger Jonathan Adler explains, today the US Court of Appeals for the Sixth Circuit issued its decision in Tiger Lily, LLC v. US Department of Housing and Urban Development, ruling that the nationwide moratorium imposed by the Centers for Disease Control is illegal. As Jonathan notes, the decision is unsurprising because it reaches the same conclusion as the Sixth Circuit's own earlier ruling in the same case (denying the federal government's motion to stay the district court decision against the moratorium). The main difference is that today's decision is a final ruling on the merits.
I agree with virtually all of Jonathan's comments. As he points out, this deepens the circuit split with the badly flawed DC Circuit decision in favor of the moratorium, and thereby increases the likelihood that the issue will eventually reach the Supreme Court, if the moratorium is extended beyond its current July 31 expiration date. He is also right that the Supreme Court recently signaled that at least five of nine justices believe the moratorium is illegal, even as a narrow 5-4 majority also—for now—refused to block enforcement of the moratorium.
For the moment, the ruling will have only a limited effect, because the district court decision it upholds only forbids enforcement of the moratorium within the Middle District of Tennessee. It is not a nationwide injunction or even one that covers the entire territory over which the Sixth Circuit has jurisdiction. But the Sixth Circuit decision is still a notable setback for the moratorium, one that comes on the heels of many other rulings against it.
Jonathan extensively quotes Judge Amul Thapar's concurring opinion highlighting the nondelegation issue in the case, and its importance to our constitutional structure. Thapar is a very prominent conservative judge, and his opinion may well turn out to be influential. It's also worth noting that Judge John Bush's opinion for the court (joined by all three judges) also highlighted the nondelegation issue as an additional basis for the panel's ruling:
Finally, to put "extra icing on a cake already frosted," the government's interpretation of § 264(a) could raise a nondelegation problem.Van Buren v. United States, 141 S. Ct. 1648, 1661 (2021) (quoting Yates v. United States, 574 U.S. 528, 557 (2015) (Kagan, J., dissenting)). Under that interpretation, the CDC can do anything it can conceive of to prevent the spread of disease. That reading would grant the CDC director near–dictatorial power for the duration of the pandemic, with authority to shut down entire industries as freely as she could ban evictions….
In applying the nondelegation doctrine, the "degree of agency discretion that is acceptable varies according to the scope of the power congressionally conferred." Am. Trucking, 531 U.S. at 475. Such unfettered power would likely require greater guidance than "such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases."
The implications of the government's position are actually even more extreme than the Sixth Circuit ruling suggests. Not only would the CDC enjoy "near-dictatorial power for the duration of the pandemic," it would continue to do so even during "normal" times. That's because the statute in question covers measures adopted "to prevent the introduction, transmission, or spread of communicable diseases." There are no limitations as to the severity or contagiousness of the disease in question (except that it must be "communicable").
Thus, if the federal government is right to claim that there are also no meaningful limitations on the nature of the "regulations" that can be adopted, the statute would give the federal government the power to suppress any activity that could potentially increase the spread of communicable diseases of any kind—whether it be Covid-19, the flu, or even the common cold. I discussed this issue in more detail in my very first post on the eviction moratorium, written in September of last year, when it was initially adopted under the Trump administration. Since then, several federal courts have ruled against the administration in large part because of similar concerns. I have written about these cases and the issues at stake in numerous previous posts, including here, here, and here.
We now have a total of nine lower court decisions on the legality of the eviction moratorium, of which six have ruled against its legality, while three have upheld it (see here for links to my analyses of the previous eight). That doesn't count a recent Eleventh Circuit ruling, in which a 2-1 majority refused to issue a preliminary injunction blocking the moratorium, but all three judges strongly suggested they believe the CDC order is illegal.
Today's ruling continues a pattern under which, with rare exceptions, Republican-appointed judges have ruled against the moratorium, while Democratic appointees have upheld it. All three of the judges on the Sixth Circuit panel are Republican appointees. This polarization is lamentable. In previous writings, I have noted some considerations that should at least give progressives some pause about allowing the executive branch to wield such sweeping power (see here, here and here):
[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….. 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 [litigation over] CDC eviction order, the most recent important decision invoking it was a district court ruling striking down Trump's suspension of immigrant work visas.
If the CDC eviction order expires on July 31, as currently planned, this could well be the last significant ruling on the statutory and separation of powers issues at stake in these cases. But, for reasons I described here, landlords affected by the moratorium might well be able to continue to raise Takings Clause claims against it, seeking compensation for the financial losses they have suffered.
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 the issues involved.