Comment: Eviction ban helpful, but it isn’t in CDC’s authority

By Nicholas Bagley / Special To The Washington Post

Last week, a Trump-appointed judge in Washington, D.C., ruled that the Centers for Disease Control and Prevention exceeded its authority in placing a nationwide moratorium on certain residential evictions.

It’s the fifth time that a federal court has found that the order, set to expire at the end of June, is invalid, but this ruling is the most significant yet because it applies nationwide. The Biden administration has asked the judge to pause her decision while it makes an emergency appeal. But if she rebuffs that request, the CDC may no longer be able to prevent landlords from evicting tenants who fall behind on their rent.

Though the consequences would be harsh for many Americans, this isn’t the now-familiar story of a right-wing judge contorting the law in a politically motivated effort to thwart a robust covid-19 response. The decision doesn’t make any grand pronouncements about the narrow scope of Congress’ powers in our federal system, as one earlier decision in Texas did. Nor does it radically change existing law to make it harder for states to protect the public health, as the U.S. Supreme Court did in a recent case about religious liberty.

Instead, the decision is a measured and sensible interpretation of the law empowering the CDC to act, one that respects the usual allocation of public health authority between the states and the federal government. While it’s hard to blame the CDC for pulling out all the stops to mitigate the pain of the epidemic, it’s also not a surprise that its efforts have encountered resistance in the courts. And this week’s decision leaves the door open for Congress to pass a law that would grant the CDC or another agency the power to protect renters; hardly a sign of rank judicial activism.

The background of the law that the CDC has invoked to justify the moratorium, Section 361 of the Public Health Service Act, helps explain why the judge was skeptical that it gave the agency sweeping power over housing policy. Originally adopted in 1944, Section 361 delegated power over certain public health measures to the surgeon general. (The CDC hadn’t yet been created, though its predecessor, the Office of Malaria Control in War Areas, was hard at work.)

Today, the surgeon general is mainly known as the chief medical officer for the nation, but his military title reflects his historical role as the head of the Marine Hospital Service. Established shortly after the nation’s founding, the hospital service started by establishing institutions to care for sick and disabled seamen. After a rash of devastating yellow fever epidemics in 1877, Congress assigned to the service quarantine-related responsibilities that had previously been left to the states, partly because marine hospitals were natural quarantine sites at seaports.

In the subsequent decades, the surgeon general’s quarantine authority grew in the face of communicable-disease threats. As it did, his job transformed into that of the chief public health officer for the federal government, which made him a natural delegate, in 1944, for the authorities under Section 361. The fact that quarantine was at the heart of the surgeon general’s responsibilities also explains why Section 361 is found under the heading “Quarantine and Inspection.” (The law’s substance has not changed in more than 80 years, even though the surgeon general’s powers under Section 361 were later transferred to the CDC.)

Clearly, an eviction moratorium is neither a quarantine nor an inspection measure; a bit of legal awkwardness right out of the gate. Then again, Section 361 is pretty awkwardly worded. It starts big. The law says that the CDC “is authorized to make and enforce such regulations as in [its] judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases” from foreign countries or across state lines.

Taken literally, that’s an extraordinarily broad mandate. Diseases don’t respect state lines, so the best way to prevent “spread” from one state to another is often to stop the disease wherever it is found. On that theory, the CDC could conceivably adopt whatever measures it thinks will most effectively arrest a disease’s progress, up to and including national mask mandates or national lockdown orders. That would be a surprisingly expansive delegation of power given the states’ traditional primacy in the field of public health.

But then the law goes small. To carry out “such regulations,” the CDC is specifically authorized to “provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles … and other measures, as in [its] judgment may be necessary.” Pointedly, this list of activities does not include such broad emergency public health measures as restrictions on public gatherings or temporary business closures.

The Justice Department rightly notes that the list ends with a catchall authorization of “other measures” as “may be necessary.” But the courts have long held that when “general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words.”

Following that rule, the phrase “other measures” should be read to authorize actions similar to those in the list (“inspection, fumigation, disinfection”). Such measures might include interstate travel restrictions, perhaps, or a ban on the operation of cruise ships similar to the one that the CDC has adopted (and which Florida has challenged in court). But a moratorium on residential evictions isn’t in the same ballpark.

Restricting evictions may reduce the number of people forced onto the streets and into homeless shelters, and that may, in turn, marginally reduce the spread of covid-19 within the United States. But an eviction moratorium bears no similarity to border controls specifically targeted at the prevention of the passage of disease from one state into another.

That at least was Judge Dabney Friedrich’s conclusion in Wednesday’s decision. Along the way, she raised an eyebrow about possible constitutional concerns with a statute that delegated such broad authority to regulate intrastate activities, a classic conservative worry. But her ultimate decision was rooted firmly in the statute: “Congress did not express a clear intent to grant the Secretary such sweeping authority.”

She’s right about that. In contrast to other judges who have ruled against the eviction ban, however, she did not limit the remedy to the plaintiffs: She invalidated the order outright, meaning that landlords across the country may soon be emboldened to start eviction proceedings. It’s arguably inappropriate that her decision carries so much sway, given that two other judges in other parts of the country previously sided with the CDC. Why should Friedrich get the final word?

But her decision left the Justice Department with little choice about how to proceed. Just hours after the opinion was issued, the department filed the paperwork for an appeal. Friedrich has put her decision on hold for a week to consider the department’s request for a stay while that appeal is pending. In so doing, however, she signaled that she may be disinclined to pause her decision.

If the Biden administration can’t stop the decision from taking effect, the consequences for families facing eviction would be serious. But the implications for Congress’s authority over public health would probably be modest. Friedrich’s decision still allows Congress to revisit an antiquated statute allocating public health authority between the federal government and the states. If Congress wants to grant the CDC or another federal agency broader powers to cope with the threat of contagious disease — including perhaps the authority to temporarily suspend residential evictions — it remains free to do so. In a democracy, that’s as it should be.

Nicholas Bagley is a professor of law at the University of Michigan.