When the Trump administration decreed a nationwide eviction moratorium in September, I suggested in this space that the measure would face tough sledding in federal court. That’s not because the current state of constitutional law is as protective as it should be of property owners’ rights — in fact, it’s not nearly as protective as one would like. What leaves the edict on such shaky ground is that it purports to derive a stunningly broad federal power from an obscure and miscellaneous corner of the U.S. statute books authorizing the Centers for Disease Control, carrying forward powers originally held by the Surgeon General,
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 [emphasis added].
Get it? “And other measures, as in his judgment may be necessary” on this view conveys a power to reach out and regulate basically any contract and economic relationship in the country, however local and otherwise unreachable by federal power. At the time my colleague Julian Sanchez observed, “This is an extraordinary assertion of federal authority by executive fiat based on an incredibly tenuous link to an underlying statutory authority.”
Now, as Ilya Somin notes in a Volokh Conspiracy post, federal judges in Ohio and Tennessee have struck down the eviction moratorium on precisely these grounds. A third federal judge in Texas went further and struck down the measure as overstepping the federal government’s enumerated commerce power itself, which is a stronger basis: it means that the feds could not assert a power this broad even were Congress to pass a law explicitly seeking to confer it.
On the other hand, federal courts in Louisiana and Georgia have handed down rulings upholding the claim of CDC power. These differences make it likely that the litigation will continue to the circuit courts. At some point, the U.S. Supreme Court will likely be asked to resolve the question. I put it this way last fall:
As the late Justice Scalia said, Congress as lawgiver does not hide elephants in mouseholes. If it confers peremptory power over the entire U.S. economy to a functionary in the federal organizational chart, it does not do so by inadvertence amid a list of authorities to inspect arriving agricultural goods for pests and intercept the travel between states of persons with contagious disease.
Whatever the proper scope of federal public health power, it cannot convey — and by mere miscellaneous implication among powers of freight inspection and fumigation! — an autocratic power to override the terms of every apartment lease from Key West to Ketchikan.
