It’s also a correct legal decision to say that “shall” means shall. But one decision they managed to settle in 3 weeks, the other is taking 3 years and counting.
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Not sure what you mean by ultimate bad facts/bad law. It’s hard for me to believe that the statute was intended to authorise the CDC to de facto legislate on federal housing policy. If that’s allowed, what wouldn’t be allowed? I haven’t read the opinion of any Justices but it seems like this would be unconstitutional under Article 1 Section 1, the nondelegation doctrine.
Obviously I’m not disagreeing that the court is a politicized entity, but questions of law do sometimes have correct answers. SCOTUS’s decision here is in line with the decisions made by most Federal Courts. I’m also not crazy about the idea that the answer to a dysfunctional Congress is to imbue the executive branch with ever-increasing levels of power.
Exactly this. Can move real fast when the mood strikes I guess.
You should probably read the decision before getting into this argument.
The argument is even more ridiculous, because the statute actually includes confiscation and destruction of property as examples of what the CDC is empowered to do, and then the court writes this:
The equities do not justify depriving the applicants of the District Court’s judgment in their favor. The moratorium has put the applicants, along with millions of landlords across the country, at risk of irreparable harm by depriving them of rent payments with no guarantee of eventual recov- ery. Despite the CDC’s determination that landlords should bear a significant financial cost of the pandemic, many landlords have modest means. And preventing them from evicting tenants who breach their leases intrudes on one of the most fundamental elements of property owner- ship—the right to exclude.
Just shows where this Courts allegiances lie, with landlords.
There’s a saying that bad facts make bad law. In my view, section 361 plainly was intended to allow the CDC to do pretty much anything necessary to combat infectious diseases (up to the constitutional limits of the federal government’s powers). This is not a crazy idea. Infectious diseases require rapid and flexible responses, and you need expert judgment to determine what the right course of action is. That’s exactly what you want to delegate to regulators.
The problem is that the eviction ban has an extremely tenuous relationship to public health. The right answer is that this particular regulatory action is not actually necessary to combat COVID, it’s just being pursued for political reasons. However, courts are generally reluctant to flatly second-guess an agency’s judgment. It’s much easier to just interpret the statute in a way that makes the bad-faith action illegal regardless of motivation. It’s not even politicization, exactly, it’s judges straining to get to the “right” outcome using whatever reasoning is available to them. If the regulatory action is a mask mandate in public spaces, I think the Court probably would have said it was fine, even though that’s not consistent with the statutory interpretation they adopted here.
I agree with you that the CDC was overreaching here, but the problem is that the Court can’t just call BS and say they can’t do this, they have to ground their call of BS in an interpretation of the statute, so they adopt an excessively restrictive interpretation of the statute to enable themselves to call BS on this particular action.
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From the dissent:
The statute’s first sentence grants the CDC authority to design measures that, in the agency’s judgment, are essen- tial to contain disease outbreaks. The provision’s plain meaning includes eviction moratoria necessary to stop the spread of diseases like COVID–19. When Congress enacted §361(a), public health agencies intervened in the housing market by regulation, including eviction moratoria, to con- tain infection by preventing the movement of people. See, e.g., 5,589 New Cases in One Day Break Influenza Record, N. Y. Times, Jan. 29, 1920, section 1, pp. 1–2, col. 1 (“ ‘[T]he Health Department . . . instruct[s] all landlords that no per- son suffering from [influenza and pneumonia] can be re- moved under any condition whatever without the sanction of the Health Department . . . ’ ”). If Congress had meant to exclude these types of measures from its broad grant of au- thority, it likely would have said so.
I don’t think this is an overreach at all. And I don’t think it was a political decision to enact the moratorium. The regulation limited it’s application to counties where spread was real high and it included ways for landlords to challenge people trying to take advantage of the moratorium in bad faith.
I think it is consistent with that? From the decision:
These measures [fumigation, destruction of contaminated objects, etc] directly relate to preventing the interstate spread of disease by identifying, isolating, and destroying the disease itself. The CDC’s moratorium, on the other hand, relates to interstate infection far more indirectly: If evictions occur, some subset of tenants might move from one State to another, and some subset of that group might do so while infected with COVID–19. See 86 Fed. Reg. 43248–43249. This downstream connection between eviction and the interstate spread of disease is markedly different from the direct targeting of disease that characterizes the measures identified in the statute. Reading both sentences together, rather than the first in isolation, it is a stretch to maintain that §361(a) gives the CDC the authority to impose this eviction moratorium.
The Court struck it down because it was way too vague in how it related to the authority delegated by Congress to the CDC - i.e. preventing the interstate transmission of COVID. A mask mandate directly relates to preventing the spread of COVID.
If the CDC’s directive had stated that people actively suffering from COVID-19 could not be evicted, I’d expect the Court to uphold that. That also directly relates to controlling the spread of the disease. Simply tacking on “order only effective in areas of high spread” doesn’t give the CDC authority to order anything it likes. The effect of its orders has to be in proportion with how directly the orders bring the transmission of COVID under control.
The way the Court makes the eviction moratorium appear only tenuously related to interstate spread is by implicitly disregarding intrastate transmission leading to interstate transmission. A major reason for the moratorium is that people who get evicted could end up in homeless shelters, which are said to be especially risky for COVID spread. Or they might go crash on someone’s couch, which has risks too. But the Court is saying (or acting like) the only thing the CDC is authorized to act against is virus particles moving directly from one state to another.
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It should also be noted that the Court’s reading of the first two sentences of the statute is directly contradicted by the text. What the opinion says is:
But the second sentence informs the grant of authority by illustrating the kinds of measures that could be necessary: inspection, fumigation, disinfection, sanitation, pest extermination, and destruction of contaminated animals and articles.
This is false. The relevant text is here:
The Surgeon General, with the approval of the Secretary, is authorized 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. For purposes of carrying out and enforcing such regulations, the Surgeon General may provide 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 Court claims that Sentence 2 is illustrating the grant of authority in Sentence 1 and implicitly limiting it to things that are “similar” somehow to Sentence 2 things. In fact, the text is absolutely clear that there are two separate grants of authority. Sentence 1 authorizes the CDC to do whatever is necessary to prevent interstate disease spread. Sentence 2 is an additional grant of authority to do things that are helpful for “carrying out and enforcing” Sentence 1 regulations. Grammatically, the referent of “such regulations” is Section 1 regulations. And it’s not saying “such regulations may include X, Y, and Z.” It’s saying that to make it easier to enforce Section 1 regulations, the CDC can make other regulations. The section is incoherent if Sentence 1 regulations and the things described in Sentence 2 are the same regulations.
The other big problem with the Court’s interpretation is that it gives the CDC far too little authority. Section 2 enumerates the following things:
- inspection
- fumigation
- disinfection
- sanitation
- pest extermination
- destruction of infected or contaminated animals or articles
This list of powers is more or less what you would empower customs to do at a port. Someone wants to import some cattle and you inspect them to make sure they don’t have mad cow disease. It’s not even really clear from this list that you can do anything at all to human beings. “Inspect” them maybe, but everything else in the list is so obviously focused on vegetables and livestock that you probably should read inspection in that context as well.
But everyone knows that the delegation is much broader than that, because the very next subsection contains an actual limitation on the delegation:
Regulations prescribed under this section shall not provide for the apprehension, detention, or conditional release of individuals except for the purpose of preventing the introduction, transmission, or spread of such communicable diseases as may be specified from time to time in Executive orders of the President upon the recommendation of the Secretary, in consultation with the Surgeon General.
Apprehension, detention and conditional release of individuals?! I thought we were talking about fumigations and inspections. Where does the CDC get the power to detain people?* Here, the Court just waves it hands and insists that the enumerated list above is actually intended to be a list of measures that “directly relate to preventing the interstate spread of disease by identifying, isolating, and destroying the disease itself.” That’s just wrong. The Sentence 2 list is a description of what you do during a customs inspection. You can just read it and see for yourself. As a result, the entire construct where Sentence 2 is a limiter on Sentence 1 is incoherent, because the limitations it would impose are far narrower than what is plainly contemplated by the statute. What the Court is doing here is trying to rescue their interpretation by just asserting that Sentence 2 means what it needs to mean for their interpretation to be tenable and for them to get the result that they want. But their interpretation can’t really be rescued, because it’s wrong.
None of this is to say that the statute itself is inconsistent. It actually makes perfect sense. Sentence 1 says that the CDC can make whatever constitutional rules it thinks are necessary to contain epidemics. Sentence 2 says that they can inspect livestock and produce even though they’re worried about human pathogens. Then after writing that immensely broad grant of power, the drafters realized “Holy shit, we just gave the CDC a power so broad that they could start rounding people up and putting them in FEMA camps. That’s not what we wanted! Let’s add some subsections saying that they can only put people in FEMA camps in certain situations.”
That’s a broad grant, but it’s not unlimited. The limiting principle is that the delegation only extends to matters that are necessary to control communicable diseases. The Court’s problem is that this limiting principle is not really judicially enforceable. For various complicated reasons, the Court just can’t say that the eviction moratorium is not necessary to fight COVID, that it’s too burdensome, that it’s completely disproportionate to how they’ve acted in every other area. That’s what they believe, and they may well be right, but courts generally don’t make those kinds of calls, especially where constitutional rights aren’t implicated. The legislature and the executive are the branches that balance costs and benefits and do science and make judgment calls. What the courts can do, however, is encode their preferred policy rule into an interpretation of the statute, and then “discover” that the statute actually means exactly that interpretation, so that’s what they did. But no one should be fooled here. No matter how hard you squint, the Sentence 2 list does not mean “measures that ‘directly relate to preventing the interstate spread of disease by identifying, isolating, and destroying the disease itself.’” That rule was invented out of whole cloth by the Court, and they are just brazenly substituting that rule for the actual text of the statute, because they really want to strike down the moratorium.
* Incidentally, the tempting but wrong answer here is section 361(d). Section 361(d) does explicitly authorize quarantines, but only within the US under narrow circumstances. It’s a clawback of the clawbacks on quarantine powers contained in (b) and (c). Notably, it does not authorize quarantines on entry to the U.S., but the CDC clearly does have power to institute those for diseases specified in section 361(b).
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I think this is a very tendentious reading. If Sentence 2 is not illustrative of the sort of things allowed by the statute, why is it there at all? According to both our readings, Sentence 1 already authorises the CDC to do all the things in Sentence 2. But in my reading Sentence 2 is like “for the avoidance of doubt, they can definitely do slightly controversial things like seize your shit and destroy it, so don’t even try arguing” while in your reading it’s just entirely superfluous and serves no purpose at all. The exception for detaining individuals is there precisely because it also relates to direct action to mitigate the spread of a disease. The fact that both Sentence 2 and that clause relate to this class of action is evidence that this is the domain authorised in Sentence 1.
The CDCs order was very obviously a piece of government policy being disguised as an emergency disease control action. The majority notes in the decision that it requires Congress to speak a lot more plainly than this if it means to authorise sweeping authority of the sort the CDC was claiming. There are good reasons for that which I’m sure I don’t need to go into. And it’s unconstitutional to be like “person or body X now has all the powers of Congress and can legislate by decree” even if you add “during an epidemic” at the end. In establishing the ability of Congress to delegate authority, SCOTUS had this to say:
However, the Supreme Court ruled in J. W. Hampton, Jr. & Co. v. United States (1928)[2] that congressional delegation of legislative authority is an implied power of Congress that is constitutional so long as Congress provides an “intelligible principle” to guide the executive branch: "‘In determining what Congress may do in seeking assistance from another branch, the extent and character of that assistance must be fixed according to common sense and the inherent necessities of the government co-ordination.’
What you’re arguing, which is that “the extent and character of the assistance” the CDC provides to Congress is not limited, would render the statute an unconstitutional delegation of authority. Just claiming a tenuous link to control of the pandemic isn’t good enough, as in a pandemic virtually every field of public policy is linked to the pandemic. Housing, law enforcement, transportation, contract law, welfare and social services, etc etc.
The fact that SCOTUS previously allowed the moratorium to continue, giving Congress time to act, and that Congress did not act, is evidence that what is proposed here is not the CDC “assisting” Congress as permitted by the implied power, but rather replacing it and legislating by decree.
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I don’t think it’s a particularly well-drafted statute, so I don’t know how much actual sense it’s going to make at the end of the day, but what Sentence 2 says it’s doing is authorizing additional things that may be done to carry out or enforce the regulations described in Sentence 1. Perhaps the drafters thought that the Sentence 2 examples were more prophylactic measures. Like you can require people to fumigate their oranges even if you have no reason to believe they have orange AIDS. But it is explicitly not a “for the avoidance of doubt” or a “for example” sentence. The words don’t support that interpretation. The words also don’t give any support to the direct vs indirect distinction that the Court hangs its hat on. That standard is completely made up and derives from nothing in the text of the statute.
I actually find it a bit more plausible that the statute is simply unconstitutional than that it means what this opinion says it means. I hate con law, so I don’t have too many thoughts on this, but there is also a Youngstown Sheet & Tube argument that the provision is sort of a hybrid between the executive’s inherent authority to deal with crises and more normal legislative delegation. Actually, perhaps that gives a more coherent interpretation of 361(a). Sentence One is a blank check saying that Congress fully supports whatever the executive decides to do in exigent circumstances, while Sentence Two is a more traditional grant of delegated authority to do routine things that aren’t justified by a crisis but are useful for preventing one. Not really sure about that though.
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To be fair, even just needing to pass the original qualifying process for entry to these professions has some value. You’re at least screening out for base levels of technical competence so you can have at least a little confidence that when someone is legally allowed to present themselves as a doctor they have had some basis in medical training.
The broader point still stands though. Professions should probably police their members more aggressively. Especially given that their is a sort of social contract where regulators give them rent seeking power (Law X says that activity Y can only be performed by a licensed practitioner) in exchange for assurances that the profession will maintain standards.
Don’t stick your dick in crazy, that is ancient wisdom.
Meh. They’re sociopaths all around, I have no doubt that their relationship was in fact toxic.
https://twitter.com/ajplus/status/1433105922004553731?s=19
https://twitter.com/chicagotribune/status/1433086501773062159?s=19
You may recall that Eastman was the Kamala Harris birther who wrote that she was ineligible to be VP.