Delegation, Property Rights and Federalism: Alabama Association of Realtors v Department of Health and Human Services, 594 US ____ (2021)

First under President Trump and then under President Biden the Director of the Centers for Disease Control and Prevention issued a nationwide eviction moratorium in the United States of America. Under the Biden Administration’s narrower version, the moratorium prevented landlords from evicting tenants in areas where there are high transmission rates of COVID-19. At various points Congress had legislated to put a moratorium in place, but this statutory basis has by now long since expired.

Realtor associations and rental property managers in Alabama and Georgia took legal action, challenging the CDC’s authority to issue the moratorium. At first instance, a federal court in Washington D.C. agreed that the CDC did not have the necessary authority but stayed its order pending appeal. The D.C. Circuit Court declined to vacate the order, so the associations and managers asked the Supreme Court of the United States to do so. In a per curiam opinion, reached without hearing oral argument, a majority of the Court vacated the order: Alabama Association of Realtors v Department of Health and Human Services, 594 U.S. _____ (2021).

The central issue was whether s. 361(a) of the Public Health Service Act authorized the moratorium. Under that provision, the CDC:

…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.

For the majority, even though the issue arose on an application for a stay and had not been argued at an oral hearing, it was clear that the CDC’s moratorium could not rest on the foundations of s. 361(a).

To begin with, the second sentence of s. 361(a) qualified the first:

The Government contends that the first sentence of §361(a) gives the CDC broad authority to take whatever measures it deems necessary to control the spread of COVID–19, including issuing the moratorium. 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. These measures 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… 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.

As Justice Breyer pointed out in dissent, however, there is an alternative, plausible reading of the statute: the second sentence provides explicit statutory authority for interference with property rights; absent the second sentence, the first would ordinarily not be read to cover such measures. Read that way, the second sentence does not qualify the first sentence at all but merely specifies that which needs to be specified in order to give s. 361(a) the broad scope Congress intended for it to have.

Cutting in favour of the majority’s interpretation is the extent to which the moratorium interferes with property rights (by removing one of the most fundamental aspects of the concept of property: the ability to exclude others) and purports to regulate the landlord-tenant relationship, which is a matter of state law. The majority also invoked the ‘major questions’ doctrine in this regard:

Even if the text were ambiguous, the sheer scope of the CDC’s claimed authority under §361(a) would counsel against the Government’s interpretation. We expect Congress to speak clearly when authorizing an agency to exercise powers of “vast ‘economic and political significance.’” Utility Air Regulatory Group v. EPA, 573 U. S. 302, 324 (2014) (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 160 (2000)). That is exactly the kind of power that the CDC claims here. At least 80% of the country, including between 6 and 17 million tenants at risk of eviction, falls within the moratorium…. “Our precedents require Congress to enact exceedingly clear language if itwishes to significantly alter the balance between federal and state power and the power of the Government over private property.” United States Forest Service v. Cowpasture River Preservation Assn., 590 U. S. ___, ___–___ (2020)…

Regardless of one’s views on the merits, this is a good example of concerns about constitutional principle — here, individual rights and federalism — being used to narrow the scope of statutory authority. The “principle of legality” can be invoked in the United States as it is elsewhere in the common law world.

Still, it is not clear that the majority was correct that the outcome was inevitable. Justice Breyer was surely right to observe in dissent that the CDC’s moratorium was narrowly tailored by virtue of its focus on areas of high COVID-19 transmission and, indeed, was time-limited in that it was to expire in October. The majority responded that the government’s claim of authority was “breathtaking” and limitless:

Could the CDC, for example, mandate free grocery delivery to the homes of the sick or vulnerable? Require manufacturers to provide free computers to enable people to work from home? Order telecommunications companies to provide free high-speed Internet service to facilitate remote work?

The difficulty with this argument is that the hypotheticals all involve requirements to take positive action. These would violate the principle set out in National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012) that imposing coercive measures to engage in economic activity is beyond the scope of Congress’ power to regulate interstate commerce. But the moratorium is negative, not positive; it requires landlords to refrain from action, not to take action. If one reframes the hypotheticals — preventing employers from denying people the ability to work from home, for instance — the claim of authority does not have as much capacity to take your breath away.

There is significant force, therefore, to Justice Breyer’s argument that the moratorium sat well within the statutory power conferred by s. 361(a). Accordingly, absent a frontal attack on the constitutionality of the delegation to the CDC, the moratorium was valid or, at least, was not clearly invalid.

For all that, this is at least a fully reasoned opinion on a matter on the Court’s “shadow docket”, as Will Baude has termed it. Given the restrictive American rules on justiciability, standing, ripeness and mootness — far stricter than those in other common law jurisdictions — many meritorious cases of general public importance do not attract a full decision on the merits. During the pandemic, notably, the Court has issued many interim “shadow docket” decisions which required lower courts, counsel and commentators to divine the Supremes’ intentions by reading between the lines of cursory orders to vacate or not vacate first-instance and appellate rulings. There is a good case to be made for a wholesale revision of the American jurisprudence on “cases and controversies”, but short of this the fulsome discussion of the eviction moratorium provides welcome illumination of the “shadow docket”.

This content has been updated on October 25, 2021 at 14:44.