I've been speculating since Feb. abt whether CDC might push the envelope on what Section 361 of the Public Health Service Act authorizes. I didn't expect it to come in the form of a federal eviction moratorium. Wow. I definitely expect this to be challenged in court.
Here's the order: s3.amazonaws.com/public-inspect…
Note: some folks are focusing on 361's quarantine provisions, but 361(a) - aka 254(a) - is broader than quarantine authority. law.cornell.edu/uscode/text/42…
361(a) authorizes the HHS Sec'y/CDC Director "to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases ... from one State or possession into any other State or possession."
Note: the statute authorizes the Surgeon General, but through administrative reorganizations, this authority is understood to be exercised by the CDC Director, subject to approval by the HHS Secretary, NOT the Surgeon General, whose modern role is purely advisory/educational.
Sorry - typo - It's 264, not 254.
Arguments re: whether nexus b/w evictions & interstate spread is strong enough could come up either (A) through an argument that 361, applied this way, exceeds Congress's interstate commerce power or (B) via a due process or equal protection challenge alleging no rational basis.
Fortunately, the CDC moratorium waives federal preemption: "this Order does not preclude State, local, territorial, & tribal authorities from imposing add'l requirements that provide greater public-health protection & are more restrictive than the requirements in this Order."
Theory: a CDC career staffer drafted the eviction order along w/others pushing the envelope on 361 (e.g., a fed. mask mandate) then someone higher up plucked it out & approved b/c it nicely tees up a court precedent w/powerful deregulatory effects ranging well beyond the pandemic
A court decision striking down the CDC eviction order could also tie a future Biden administration's hands on a host of measures under consideration re: masks & business restrictions, which (if issued by the administration w/o congressional action) would similarly rely on 361(a)
I'm not an admin law expert, but others I've consulted have suggested that bold federal community mitigation restrictions/mandates (e.g., federal business closures or mask mandates) would probably require more explicit congressional authorization than 361(a) provides.
The argument will go something like this: either the CDC order exceeds the scope of the statutory authorization (b/c Congress didn't intend for CDC to be able to do this) or if doesn't, then a delegation by congress of authority this sweeping violates the separation of powers"
Additional arguments are likely to invoke: the limits of Congress's authority to regulate interstate commerce (which is the basis for 361's delegation of authority to the CDC Dir. to control the interstate spread of disease)...
... allegations that this action is arbitrary and capricious and therefore violates guarantees of equal protection and due process under the 5th Amendment...
... a regulatory takings argument under the 5th Amendment...
... and more! But the statutory construction/nondelegation double whammy is the one to watch.
To put it another way: If/when the CDC eviction order is enjoined by courts, it will probably be based on arguments that boil down to "the wrong part of the government implemented this the wrong way" rather than "no part of government can do this."
Admin law friends are pointing out that the order is also likely to be challenged on the grounds that CDC should have followed regular rule-making procedures.
In many ways, I expect the challenges to mirror Wisconsin Legislature v. Palm and other challenges to state stay-at-home orders, with the addition of a crunchy layer of federalism.
Federal action in this area (including mask mandates, business restrictions, stay-at-home orders, etc) is on more tenuous ground than state action b/c federal action must be justified as an exercise of a power enumerated in the Constitution, eg to regulate interstate commerce.
