Note: This blog was originally posted at the Volokh Conspiracy.
Earlier today, the Judge Dabney Friedrich of the US District Court for the District of Columbia ruled that the nationwide eviction moratorium order issued by the Centers for Disease Control is illegal. The ruling in Alabama Association of Realtors v. Department of Health and Human Services is yet another setback for the CDC eviction moratorium, which was first issued by the Trump administration last September and then twice revived and extended under Biden (most recently until June 30). Today's ruling is the fifth court decision holding that the eviction moratorium is illegal, including an appellate court decision by the Sixth Circuit, and three previous district court rulings (see here and here). Two trial court decisions have upheld the order.
Today's ruling is similar to most of the previous decisions that went against the CDC order, in so far as they all conclude that the government's position would give the CDC sweeping power that goes far beyond anything authorized by Congress. But it differs from the earlier cases because it addresses the issue within the context of the Supreme Court's famous ruling in Chevron v. Natural Resources Defense Council (1984), which requires federal courts to defer to "reasonable" executive agency interpretations of statutes in cases where the agency is tasked with enforcing the law in question, and Congress has not specifically addressed the question at issue. The Biden administration argues that the CDC deserves Chevron deference in this case. The court wasn't persuaded.
The statute the CDC relies on, 42 U.S.C. Section 264(a), gives the CDC director the authority "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." That includes "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."
Following Supreme Court precedent, Judge Friedrich notes that, before extending deference to a "reasonable" agency interpretation under "step 2" of Chevron, a federal court must first consider whether the issue in question can be resolved through "ordinary tools" of statutory construction. Like previous rulings against the moratorium, she concludes that the kind of broad delegation of power claimed by the CDC would raise serious constitutional problems, and therefore the statute must be interpreted to avoid such problems, if possible:
[T]he canon of constitutional avoidance instructs that a court shall construe a statute to avoid serious constitutional problems unless such a construction is contrary to the clear intent of Congress…. An overly expansive reading of the statute that extends a nearly unlimited grant of legislative power to the Secretary would raise serious constitutional concerns, as other courts have found. See, e.g., Skyworks, 2021 WL 911720, at *9 (noting that such a reading would raise doubts as to "whether Congress violated the Constitution by granting such a broad delegation of power unbounded by clear limitations or principles."); Tiger Lily, 992 F.3d at 523 (same); id. ("[W]e cannot read the Public Health Service Act to grant the CDC power to insert itself into the landlord-tenant relationship without some clear, unequivocal textual evidence of Congress's intent to do so")…. Congress did not express a clear intent to grant the Secretary such sweeping authority.
Judge Friedrich also concludes that the same issue prevents Chevron deference under the so-called "major questions" doctrine, which creates a presumption against the conclusion that Congress delegates major policy issues to executive agencies:
[T]he major questions doctrine is based on the same principle: courts "expect Congress to speak clearly if it wishes to assign to an agency decisions of vast 'economic and political significance.'" Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 324 (2014) (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) (emphasis added));…. There is no question that the decision to impose a nationwide moratorium on evictions is one "of vast economic and political significance." Util. Air Regul. Grp., 573 U.S. at 324….
Not only does the moratorium have substantial economic effects,… eviction moratoria have been the subject of "earnest and profound debate across the country," Gonzales v. Oregon, 546 U.S. 243, 267 (2006)…. At least forty-three states and the District of Columbia have imposed state-based eviction moratoria at some point during the COVID-19 pandemic, see 86 Fed. Reg. 16,731, 16,734, though, as the CDC noted in its most recent extension of the CDC Order, these protections either "have expired or are set to expire in many jurisdictions," id. at 16,737 n.35. Congress itself has twice addressed the moratorium on a nationwide-level—once through the CARES Act, see Pub. L. No. 116-136, § 4024, 134 Stat. 281 (2020), and again through the Consolidated Appropriations Act….
Accepting the Department's expansive interpretation of the Act would mean that Congress delegated to the Secretary the authority to resolve not only this important question, but endless others that are also subject to "earnest and profound debate across the country." Gonzales, 546 U.S. at 267…. Under its reading, so long as the Secretary can make a determination that a given measure is "necessary" to combat the interstate or international spread of disease, there is no limit to the reach of his authority."
The line between a "major question" as opposed to a minor one is far from clear. But, if anything qualifies as "major," it is surely the power to suppress virtually any activity, so long as the CDC claims that doing so might reduce the spread of contagious disease. For reasons described in my very first post on this issue, that power would extend to almost any human interaction of any kind, especially since the statute's reach is not limited by the severity of the disease (even the common cold will do!), or by the extent of reduction in spread caused by the CDC's measure. Indeed, the CDC isn't even required to prove that the claimed reduction will actually happen.
As I have argued, and several court decisions have now ruled, the sweeping authority claimed by the CDC violates constitutional nondelegation principles. For much the same reasons, it also runs afoul of the "major question" constraint on Chevron.
Judge Friedrich's analysis of the Chevron issue strikes me as compelling. At the very least, it seems to me unlikely that any judge otherwise inclined to rule against the CDC order will decide to uphold it based on Chevron. Whatever you think of the ongoing broader debate over Chevron, (which many legal scholars and judges would like to overrule or severely limit), the deference dog will not hunt here.
Previous rulings against the eviction moratorium have stopped short of issuing a nationwide injunction blocking enforcement. That, in turn, has allowed the CDC to continue enforcing the order against landlords who are not parties to the cases in question. Judge Friedrich, too, did not issue a nationwide injunction, or indeed any kind of injunction. She instead limits herself only to vacating the order. But she also emphasizes that this vacatur goes beyond the parties:
Both parties agree that if the Court concludes that the Secretary exceeded his authority by issuing the CDC Order, vacatur is the appropriate remedy… Nonetheless, the Department urges the Court to limit any vacatur order to the plaintiffs with standing before this Court. Defs….'
This position is "at odds with settled precedent." O.A. v. Trump, 404 F. Supp. 3d 109, 153 (D.D.C. 2019). This Circuit has instructed that when "regulations are unlawful, the ordinary result is that the rules are vacated—not that their application to the individual petitioner is proscribed." Nat'l Mining Ass'n v. U.S. Army Corps of Eng'rs, 145 F.3d 1399, 1409 (D.C. Cir. 1998) (internal quotation marks omitted); see also O.A., 404 F. Supp. 3d at 109. Accordingly, consistent with the Administrative Procedure Act, 5 U.S.C. § 706(2)(A), and this Circuit's precedent, see Nat'l Mining Ass'n, 145 F.3d at 1409, the CDC Order must be set aside.
In my view, it is possible to interpret this ruling as holding that the CDC order is now invalid throughout the country, not just with respect to the parties to the case. It is worth noting that the jurisdiction of the DC Circuit extends to federal administrative agency rulings throughout the country, and thus is not limited to a specific geographic area (unlike that of most other lower federal courts).
However, I admit I am not expert on these kinds of procedural issues. My understanding from those who know more is that the reach of this type of vacatur ruling is a matter of dispute among experts. Perhaps courts will have to address the issue if the CDC continues to try to enforce the moratorium, or if tenants raise the order as a defense to eviction proceedings in state court.
The legal battle over eviction order will surely continue, at least as long as the Biden administration keeps on extending the order and trying to defend it in court. This ruling, like others before it, is likely to be appealed.
Nonetheless, the rulings against the order are now piling up. After two initial wins, the federal government has compiled an impressively long losing streak, which now includes four trial court rulings and one in an appellate court.
As I have previously noted, the rulings on this issue have—so far—largely divided judges along ideological lines, with Republican appointees (with one exception), ruling against the order, even as the sole Democratic-appointed judge to consider it so far, has upheld it. Judge Friedrich continues that pattern, since she as a Trump appointee (albeit one ruling against a policy initially adopted by the Trump administration). Thus, the Biden administration might hope for better results when and if the issue is considered by more liberal appellate judges.
But such a left-right split is not inevitable. For reasons I summarize here, liberals have their own reasons to be wary of the kinds of sweeping claims of authority made by the Trump and Biden administrations in these cases:
[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 (and doesn't have to prove that it will actually do so). 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 CDC eviction order, the most recent important decision invoking it was a district court ruling striking down Trump's suspension of immigrant work visas.
NOTE: The plaintiffs in some of the lawsuits against the eviction moratorium are represented by the Pacific Legal Foundation, where my wife works. I myself have played a minor (unpaid) role in advising PLF on this litigation.
UPDATE: The judge has temporarily stayed her ruling, pending appeal, though she also left open the possibility of lifting the stay before the appeal process is completed.