September 4, 2020
On Tuesday, the Center for Disease Control filed a notice of a new order imposing through the end of the year a moratorium on the eviction of residential tenants who declare that they make $99,000 or less, expect to be unable to pay their rent because of a loss of income, and would become homeless if evicted. As authorization for this order, the CDC cited 42 C.F.R. §70.2, a rule issued in February of 2020 that implements section 361 of the Public Health Service Act (PHSA) mostly by repeating almost verbatim the language of 42 U.S.C. §264(a).
As I shall explain below, there is a powerful case that the CDC’s order goes far beyond the spirit and maybe even the letter of the rule and statute that purportedly authorize it. Nevertheless, those legalities will probably matter very little in constraining Presidential power in a crisis. Far more important is the public perception that something needs to be done about evictions and that neither Congress nor the states are doing it. By contrast with Trump’s other legally dubious responses to COVID-19 such as the extension of unemployment assistance, the usual critics of the Trump Administration have been startlingly silent about the CDC’s anti-eviction order. That silence seems like the sort of tacit bipartisan approval that tends to sweep away legalistic considerations.
How the CDC’s order ignores the relevant statutory standard: Do evictions transmit COVID19 across state lines?
First, consider the argument that the order lacks legal authorization. As Josh Blackman has already observed, the case that the CDC has regulatory authority to issue this order seems thin. The most obvious problem is that the CDC says nothing whatsoever about the relevant statutory standard: The Secretary is not charged with protecting public health generally but instead with preventing the interstate spread of COVID-19. Specifically, section 264(a) of the PHSA gives “the Surgeon General, with the approval of the Secretary” the authority “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” (emphasis added).
The CDC’s order says almost nothing whatsoever about how evictions increase the risk of interstate transmission. Instead, the order notes that “housing stability helps protect public health because homelessness increases the likelihood of individuals moving into congregate settings, such as homeless shelters, which then puts individuals at higher risk to COVID-19.” This statement seems plausible. The PHSA, however, does not give the CDC any general supervisory authority over “public health.” Instead, section 361 requires the Surgeon General (not the CDC) to issue regulations preventing the cross-border spread of disease, presumably because Congress wanted to leave state and local health authorities in charge of controlling intrastate transmission. The CDC’s order has one sentence noting that “[o]ver 35 million Americans, representing approximately 10% of the U.S. population, move each year.” True enough, but this fact says nothing about whether a significant number of interstate movers inhabit homeless shelters. Unless residents of homeless shelters are likely themselves to engage in interstate travel or mingle with interstate travelers, therefore, the eviction moratorium would not fall within the statutory mandate of the PHSA.
Should courts defer to the CDC’s judgment about evictions’ interstate effects?
Of course, courts would ordinarily defer to the CDC’s judgment that intrastate increase in infection arising from evictions would generally lead to interstate transmission. But other aspects of the CDC’s order seem to undercut some of the justifications for such deference. Under the statute, the CDC has controlled the spread of COVID-19 in a completely unprecedented way that seems at odds with the spirit of the PHSA.
First, the textual context of that statutory delegation suggests that Congress in 1944 expected the Surgeon General and the Secretary to use the traditional methods of the Public Health Service—inspecting, disinfecting, embargoing, and quarantining — to control the spread of disease. In the sentence following the general delegation of authority, 42 U.S.C. § 264(a) provides that the Surgeon General can implement such regulations by “provid[ing] 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.” (The CDC’s February 2020 rule repeats this language almost verbatim). Using the “noscitur a sociis” canon to read the immediately preceding statutory grant of power in light of this catalogue of techniques, the implication is that the statutory delegation was intended to focus on techniques historically associated with the transportation of goods and people crossing borders.
Second, this statutory language reflects the historical practices of the Public Health Service and its predecessor agency, the Marine Hospital Service, since 1799. The federal government has never tried to control disease by supplanting state control over housing. Since 1799, it has instead sought to control the movement of infected goods and people across national and state boundaries. The CDC’s order banning eviction is a completely unprecedented way for the federal government to manage the spread of infection.
All of these considerations – statutory language and the traditional federal role in managing contagion – highlight the dramatically unprecedented character of the CDC’s order. None of these considerations automatically suggest that the courts should suspend deference towards the CDC. But cases like Brown & Williamson v. FDA suggest that, when an agency regulates a new activity in a way contrary to its prior practice, the courts have reason to be a bit more skeptical of the agency’s claims for statutory authority.
Such skepticism might be increased by the extraordinarily broad claim of regulatory jurisdiction implicit in the CDC’s order. If the CDC can preempt landlord-tenant law on the ground that evictions spread COVID-19 within a single state, then it is hard to imagine any state policy that they could not preempt. Decisions to close schools, define “essential” workers and businesses, require masks, operate subways and buses, deploy medical resources like public hospitals – all presumably affect the rate of COVID-19 transmission. It would be odd, however, to read one sentence in section 361 as a mandate for the CDC or the Secretary to control all such public policy within a state.
One might argue that the CDC should get deference in the interpretation of their own rule implementing section 361. Whatever is left of Auer deference after Kisor v. Wilkie, however, likely provides little comfort to the CDC, because the rule seems to fall into the exception to Auer deference, reiterated by Kisor’s footnote 5, for rules that merely parrot the language of the statute. The CDC’s February 2020 rule departs from 42 U.S.C. §264’s language only by requiring the CDC to make findings about the adequacy of states’ responses to COVID-19. It is hard to see how this extra criterion adds anything substantial to the statutory requirement that the Surgeon General and Secretary show that the under-regulated private activity (e.g., evictions) somehow has interstate effects.
Can law stop executive action in a crisis that has bipartisan support?
There are, in short, some powerful reasons to read section 361’s grant to preclude the CDC’s order. And yet there is room for doubt that such legalistic limits will actually constrain the President.
This is the rare Trump initiative that seems to have bipartisan support. That something needs to be done about mass evictions seems obvious. Congress is paralyzed. State and local governments are experimenting with their own brands of eviction relief, but the CDC’s moratorium leaves in place “additional requirements that provide greater public-health protection and are more restrictive than the requirements in this Order.”
Who, then, would get rid of this executive backstop to an emergency?
Some libertarians like Ilya Somin have grumbled at the invasion of landlords’ property rights and the precedent set by such an expansive interpretation of statutory authority. But, in a crisis, property will have to yield to public health. As for precedents, William Howell shows that the only consistent precedent is that the President use the power they need to avoid the blame they will get if they do nothing in the face of bipartisan demand for action.
Will courts stand in the way? Maybe, but I am doubtful. What judge wants to rule in favor of evictions against a President with an apparently broad-ish statutory mandate and bipartisan support? The better part of valor is deference.
My bet, then, is that this order will survive judicial review on the ground that, in a crisis, Salus Populi is higher a higher law than any statutory limit. If Congress cannot deliver what both parties think that Salus Populi requires, then the President will act, and courts, defer.
Roderick Hills is the William T. Comfort III Professor of Law at N.Y.U. School of Law.
Suggested Citation: Roderick Hills, Regulatory Authority in a Crisis: The Limits of CDC’s Eviction Moratorium, N.Y.U. J. Legis. & Pub. Pol’y Quorum (2020).