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The Sturm und Drang of the CDC\u2019s Home Eviction Moratorium<\/strong><\/p>\n Paul J. Larkin*<\/sup><\/a><\/p>\n \u00a0<\/sup><\/p>\n Damn the torpedoes! Full speed ahead!<\/em><\/p>\n Admiral David Glasgow Farragut at the Battle of Mobile Bay, 1864\u00a8<\/a><\/p>\n Introduction<\/strong><\/p>\n The pandemic that has roiled the globe since late in 2019 has begun to have the same effect on the law. Beginning in March 2020, Congress, former President Donald Trump, and current President Joe Biden have engaged in a pas de trois<\/em>, taking turns directing the U.S. Centers for Disease Control and Prevention (CDC) to issue nationwide moratoria preventing qualifying tenants from being evicted for not paying their rent. Most recently, Biden, bowing to political pressure to prevent evictions from restarting after more than a year\u2019s delay, ordered the CDC to issue yet another moratorium, and, on August 3, 2021, the CDC did so. As it had done for some of its earlier orders, the CDC relied on a 1944 statute, the Public Health Service Act.[1]<\/sup><\/a> The CDC did so even though, prior to 2020, the CDC had never before invoked that law as a rental protection device or an indirect form of rent control.[2]<\/sup><\/a><\/p>\n Not surprisingly, the legality of the CDC\u2019s most recent moratorium has generated considerable public policy debate.[3]<\/sup><\/a> Some of that debate has taken place in court. Landlords, real estate companies, and trade associations have brought a series of lawsuits challenging both the CDC\u2019s statutory authority to issue those orders and their constitutionality.[4]<\/sup><\/a> One case reached the Supreme Court of the United States, twice in fact.[5]<\/sup><\/a> The first time, by a 5-4 vote the Court seemed to agree with the plaintiffs that the CDC had exceeded its statutory authority but nonetheless denied them injunctive relief pending appeal because one justice guessed that the few remaining weeks of the moratorium would enable an orderly distribution of appropriated but undisbursed federal rental assistance funds.[6]<\/sup><\/a> By contrast, when the case reached the Court a second time, the Court, by a 6-3 vote, granted the plaintiffs interim relief and went out of its way to belittle the government\u2019s argument, sending a strong message of displeasure at having to revisit the issue. [7]<\/a><\/sup><\/p>\n This Article will address the legality of the CDC\u2019s August 3 moratorium: Part I will describe the steps that Congress and the President have taken to prevent a new and often fatal virus from engulfing the nation and killing a large part of its population. That discussion will include a history of the different CDC eviction moratoria. Part II will summarize the litigation that has unfolded since the moratoria went into effect, focusing on the Supreme Court\u2019s two orders in Alabama Association of Realtors v. Department of Health and Human Services<\/em>.[8]<\/a> The Supreme Court did not issue a final ruling on the meaning of the statute, so Part III will analyze whether the CDC has the power to issue its August 3 order. Part IV asks why Biden directed the CDC to enter that order and what the long-term consequences might be for him by having done so.<\/p>\n I. The COVID-19 Pandemic<\/strong><\/p>\n Late in 2019, as if witnessing the resurrection of the Spanish or 1918 Flu that killed millions globally a century ago, the world saw the entry of another highly contagious, infectious, and potentially fatal influenza virus: Severe Acute Respiratory Syndrome Coronavirus-2, or SARS-CoV-2.[9]<\/a> The disease it causes\u2014COVID-19\u2014first appeared in Wuhan, China. The virus is spread from person to person by infected airborne respiratory droplets that enter through the mouth or nasal passages or across another mucous membrane by a recipient\u2019s own hands.[10]<\/a> It rapidly spread across the globe, reaching this country in 2020.[11]<\/a> Since the virus\u2019s onset, more than 279 million people have suffered from COVID-19 worldwide, with more than 5 million fatalities, and counting.[12]<\/a> In this country, more than 46.4 million people have been infected and 752,000-plus have died.[13]<\/a><\/p>\n In the United States, the federal, state, and local governments, as well as the private sector, immediately took a host of complementary responses.[14]<\/a> Their short-term goals were to treat infected people and shut down or reduce the number of interpersonal interactions normally seen in a modern-day society in the hope of preventing further spread of the virus and the collapse of the nation\u2019s medical systems.[15]<\/a> To do so, Trump and state governors urged or ordered businesses to close and people to remain at home except to obtain necessities, such as food and medicine, and with or for with exceptions for emergency personnel, such as physicians and law enforcement officers.[16]<\/a> The result, however, was a cascading series of adverse events: numerous small businesses collapsed, leaving their employees without a paycheck, putting them at risk of eviction for nonpayment of rent. The prospect was a human and economic tragedy unseen since the Dust Bowl that occurred during the Great Depression.<\/p>\n To avert that outcome, Congress included in a law enacted in March 2020\u2014the Coronavirus Aid, Relief, and Economic Security Act, also known as the CARES Act[17]<\/a>\u2014a 120-day nationwide moratorium on the eviction of nonpaying tenants from rental properties receiving federal financial assistance.[18]<\/a> That moratorium expired on July 25, but President Trump directed Alex Azar, the Secretary of Health and Human Services, and Robert Redfield, Director of the Centers for Disease Control and Prevention, to \u201cconsider whether any measures temporarily halting residential evictions of any tenants for failure to pay rent are reasonably necessary\u201d to prevent the interstate spread of the virus.[19]<\/a> In response, on September 4, the CDC issued a temporary eviction moratorium suspending execution of eviction orders for nonpayment of rent.[20]<\/a><\/p>\n The CDC estimated that, absent a moratorium, 30\u201340 million people could be at risk of eviction, which could spread the SARS-CoV-2 virus as evicted parties moved in with family members or friends, or moved to \u201ccongregate settings\u201d (such as homeless shelters and transitional housing) or other locations involving close interpersonal contact and the use of shared items.[21]<\/a> Some evicted parties would become homeless, which could also exacerbate the spread of the virus and worsen the condition of infected and uninfected parties given their \u201cinadequate access to hygiene, sanitation facilities, health care, and therapeutics.\u201d[22]<\/a> Eviction would not confine any problem to the state where parties had lived, because approximately 15 percent of the people who move each year relocate in another state.[23]<\/a> Accordingly, the CDC prohibited landlords from evicting a qualifying party[24]<\/a> for nonpayment of rent during the duration of the order.[25]<\/a> The order did not, however, relieve anyone of the obligation to pay rent.[26]<\/a><\/p>\n As authority, the CDC relied on the Public Health Act of 1944. Among other things, a provision in that statute entitled \u201cRegulations to control communicable diseases\u201d empowers the CDC to issue and enforce such rules that the Director deems \u201cnecessary to prevent the introduction, transmission, or spread of communicable diseases\u201d from foreign nations or from one state or possession to another.[27]<\/a> For \u201cpurposes of carrying out and enforcing such regulations,\u201d the act states that the CDC \u201cmay 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.\u201d The CDC argued that the last portion of the statute\u2014\u201cother measures, as in his judgment may be necessary\u201d\u2014justified the agency\u2019s eviction moratorium.<\/p>\n The CDC\u2019s order was scheduled to expire on December 31, 2020.[28]<\/a> Days beforehand, Congress passed the Consolidated Appropriations Act, 2021, which extended the CDC\u2019s order through January 31, 2021.[29]<\/a> Thereafter, Congress did not renew a statutory moratorium. Acting on its own, the CDC extended its order in January, February, and June 2021.[30]<\/a> That last extension expired on July 31.<\/p>\n II. Litigation Challenging the CDC\u2019s Moratorium<\/strong><\/p>\n A. The Lower Federal Court Litigation<\/strong><\/p>\n Individual landlords, trade associations, and other parties challenged the moratoria. Some lower federal courts held that Section 264 of the Public Health Act authorized the CDC\u2019s orders, some held to the contrary, and some punted, deciding only whether to issue a preliminary injunction pending a final decision.[31]<\/a> The difference in the courts\u2019 analyses is largely a matter of a difference in their focus. Some judges homed in on the phrase allowing the CDC to \u201ctake such measures to prevent such spread of the diseases as he deems reasonably necessary,\u201d and read it to grant the CDC plenary authority to decide how best to halt the spread of the virus.[32]<\/a> The courts that held the moratoria exceeded the CDC\u2019s Section 264 power approached the issue from a different perspective. They took a step back and read that phrase in conjunction with the remainder of the statute, particularly the sentence that immediately follows, specifying that, \u201c[f]or the purpose of enforcing\u201d the CDC\u2019s regulations, the Director\u2019s power \u201cinclud[es] inspection, fumigation, disinfection, sanitation, pest extermination, and destruction of animals or articles believed to be sources of infection.\u201d Those courts limited the \u201ccatch-all\u201d phrase in the preceding sentence to measures akin to the ones it specified.[33]<\/a><\/p>\n One case\u2014Alabama Realtors<\/em>\u2014made its way through the lower courts to the Supreme Court\u2014twice\u2014in a few months. That case merits a detailed discussion.<\/p>\n B. The Alabama Realtors<\/em> Case<\/strong><\/p>\n 1. Alabama Realtors<\/em> Round 1<\/strong><\/p>\n Two individual plaintiffs, the corporate entities they use to manage their rental properties, and two trade associations brought suit in federal court in the District of Columbia against the CDC, claiming that the moratoria it imposed after the 2021 appropriations act expired exceeded the agency\u2019s statutory authority and was unconstitutional to boot.[34]<\/a> On cross-motions for summary judgment, the district court ruled in the plaintiffs\u2019 favor, holding that the Public Health Service Act did not authorize the agency to halt evictions.[35]<\/a> The court acknowledged that the Public Health Service Act \u201cgrants the [CDC] broad authority to make and enforce regulations necessary to prevent the spread of disease,\u201d but added that that the CDC Director\u2019s \u201cauthority is not limitless.\u201d[36]<\/a> The \u201cbroad grant of rulemaking authority in the first sentence of \u00a7 264(a) is tethered to\u2014and narrowed by\u2014the second sentence,\u201d which identifies specific mechanisms that the CDC Director may use to protect the public health.[37]<\/a> So read, the CDC\u2019s order exceeded the agency\u2019s Section 246 regulatory power because the \u201cother measures\u201d it authorizes must resemble or be closely analogous to the ones specified in the statute.[38]<\/a> That is, they \u201cmust be directed toward\u201d infected items, like animals or clothing, and the infected items must be the \u201csources\u201d of\u00a0 a dangerous infection to humans.[39]<\/a> \u201cIn other words, any regulations enacted pursuant to \u00a7 264(a) must be directed toward \u201cspecific targets \u2018found\u2019 to be sources of infection.\u201d[40]<\/a><\/p>\n The court rejected the government\u2019s argument that the first sentence in Section 264 empowered the CDC to adopt any measures necessary it deemed necessary to prevent the spread of an infectious disease.[41]<\/a> That interpretation \u201cgoes too far,\u201d the court concluded, because it \u201cwould ignore the text and structure\u201d of Section 264 and renders \u201csuperfluous\u201d the specific designation of mechanisms elsewhere in the next sentence.[42]<\/a> \u201cIf the first sentence empowered the [CDC Director] to enact\u00a0any<\/em>\u00a0regulation that, in his \u2018judgment,\u2019 was \u2018necessary\u2019 to prevent the interstate spread of communicable disease,\u201d the court reasoned, \u201cthere would be no need for Congress to enumerate the \u2018measures\u2019 that the [Director] \u2018may provide for\u2019 to carry out and enforce those regulations.\u201d[43]<\/a> In the court\u2019s view, several considerations bolstered its reading of the text. One was the canon directing courts to give effect to every portion of a statute, if possible.[44]<\/a> Another was the injunction to avoid construing a statute in a manner that needlessly raises \u201cserious constitutional problems,\u201d such as Commerce Clause and Delegation Doctrine problems,[45]<\/a> \u201cunless such a construction is contrary to the clear intent of Congress.\u201d[46]<\/a> And the last factor was the \u201cmajor questions doctrine,\u201d which presumes that Congress does not intend to make major revisions to our economic and social welfare in murky statutory terms.[47]<\/a> Indeed, the court noted that the CDC had never used this authority in the nationwide manner that it sought to do so here, which provided strong evidence that Congress had never empowered the agency to do so.[48]<\/a> \u201cThe Court is \u201cconfident that the enacting Congress did not intend to grow such a large elephant in such a small mousehole.\u201d[49]<\/a><\/p>\n The government urged the district court to stay its ruling pending appeal, and the district court granted the government\u2019s request.[50]<\/a> The court ruled that \u201cthe Department has not shown a substantial likelihood of success on the merits,\u201d[51]<\/a> but concluded that the other equitable factors to be considered on a stay application justified granting the government\u2019s motion. The government \u201cmade a showing of irreparable injury,\u201d some of the damages that would be suffered by the plaintiffs from a stay might be recoverable later, and the public interest justified a stay.[52]<\/a><\/p>\n The plaintiffs asked the D.C. Circuit Court of Appeals to vacate the district court\u2019s stay, but the court rejected the request.[53]<\/a> At the outset, the appellate court completely disagreed with the district court\u2019s reading of Section 264. First, the court found that the text of the first sentence was itself sufficiently broad to justify the moratorium.[54]<\/a> Second, Congress had endorsed the CDC\u2019s reading of the statute in the 2021 appropriations bill by extending the CDC\u2019s moratorium, rather than adopting a new law with that effect.[55]<\/a> Third, even apart from the \u201cother measures\u201d phrase, the breadth of the text of Section 264 as a whole evidenced Congress\u2019s intent to empower the CDC Director to protect the public against harmful communicable diseases.[56]<\/a> Fourth, none of the concerns that had troubled the district court\u2014viz., the potential Commerce Clause problem from allowing Congress to regulate local evictions, the rule that Congress should not be deemed to have disrupted longstanding federalism principles absent clear language to the contrary, and the novelty of the CDC\u2019s use of Section 264 to regulate landlord-tenant relations\u2014justified cabining the breadth of the power that Congress gave the CDC Director.[57]<\/a> By contrast, the circuit court agreed with the district court\u2019s treatment of the equitable factors justifying a stay of its judgment and injunction.[58]<\/a> Accordingly, the court denied the request to lift the stay.<\/p>\n The plaintiffs then asked the Supreme Court to lift the stay, and they came within a hair\u2019s breadth of succeeding.[59]<\/a> Technically, the vote was 5-4 to deny the plaintiffs\u2019 motion, as reflected in the order entered in the case.[60]<\/a> But the outcome was much closer than that.<\/p>\n Four justices\u2014Chief Justice Roberts, as well as Justices Breyer, Sotomayor, and Kagan\u2014voted to deny the plaintiffs\u2019 request for an injunction pending appeal.[61]<\/sup><\/a> They did not offer any reasons for their vote. It is possible that they voted to deny the plaintiffs the interim equitable relief of an injunction pending appeal for either of two reasons: One is that they saw no need to overturn the concurrent decision of two lower courts to stay any injunction until the D.C. Circuit had resolved the merits of the appeal. The other reason is that they agreed with the government\u2019s reading of the statute. Four members\u2014Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Amy Coney Barrett\u2014voted to grant the application.[62]<\/a> They also did not offer any reasons for their votes. At a minimum, however, their vote to grant the plaintiffs interim relief means that those justices saw no reason to defer to the lower courts\u2019 concurrent refusal to enjoin the CDC\u2019s order. It also is likely that they saw no merit in the CDC\u2019s reading of the statute because the equities seemed to balance out in favor of denying the plaintiffs\u2019 request. That explanation is a sensible one, given the opinion issued by Justice Brett Kavanaugh explaining why he voted against a stay.<\/p>\n In a short concurring opinion, Justice Kavanaugh explained that \u201cI agree with the District Court and the applicants that the Centers for Disease Control and Prevention exceeded its existing statutory authority by issuing a nationwide eviction moratorium.\u201d[63]<\/a> As support for that conclusion, Justice Kavanaugh cited Utility Air Regulatory Group v. EPA<\/em>,[64]<\/a> a 2014 Supreme Court decision in which the Environmental Protection Agency argued that its authority to regulate the emission of pollutants by motor vehicles<\/em> also empowered the agency to regulate stationary sources<\/em> and thereby demand \u201cpermits for the construction and modification of tens of thousands, and the operation of millions, of small sources nationwide.\u201d[65]<\/a> The Court unanimously rejected that argument. Justice Kavanaugh\u2019s reliance on Utility Air Regulatory Group<\/em> shows that he thought the CDC was running on fumes.<\/p>\n But (admit it, you knew that there was a \u201cbut\u201d coming), Justice Kavanaugh then concluded that the plaintiffs should not receive interim relief they were seeking. Why?\u2014Because in relatively short order the entire matter would become macht nichts<\/em>. \u201cBecause the CDC plans to end the moratorium in only a few weeks, on July 31, and because those few weeks will allow for additional and more orderly distribution of the congressionally appropriated rental assistance funds.\u201d[66]<\/a> Having performed his Solomonic role, Justice Kavanaugh then returned to the law, saying that, \u201cIn my view, clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July 31.\u201d[67]<\/a> Given Justice Kavanaugh\u2019s internal 5-4 vote and the four votes to grant a stay cast by Justices Thomas, Alito, Gorsuch, and Coney Barrett, the better reading of the Supreme Court\u2019s order is that five justices concluded that the CDC lacks authority for an eviction moratorium.[68]<\/a><\/p>\n 2. Alabama Realtors<\/em> Round 2<\/strong><\/p>\n The Supreme Court issued its ruling on June 29, giving Congress ample time to pass a third statutory moratorium before the CDC\u2019s order expired on July 31. The Biden Administration did not publicly urge Congress to enact a new moratorium for quite some time.[69]<\/a> On July 29, however, the White House finally did so, taking the position that the CDC could not act without new statutory authorization.[70]<\/a> Nonetheless, Congress recessed without empowering the CDC to issue a new moratorium, and July 31 came and went without one.[71]<\/a><\/p>\n Two days later, in response to heavy lobbying from members of Congress, including Speaker of the House Nancy Pelosi,[72]<\/a> Biden changed his position. He directed the CDC to issue a new moratorium while acknowledging that it likely would not pass legal muster.[73]<\/a> Being a good soldier, CDC Director Rochelle Walensky that day issued a new order effective through October 31.[74]<\/sup><\/a> The new order has a slightly narrower scope than the recently expired order, but the August 3 order \u201cincludes roughly ninety-one percent of U.S. counties.\u201d[75]<\/a><\/p>\n Never saying die, the Alabama Realtors<\/em> plaintiffs returned to the District of Columbia district court and once again urged the judge to lift the stay pending appeal in light of the Supreme Court\u2019s order and the Biden Administration\u2019s confession that its new rule was likely unlawful. The judge declined the request, ruling that her hands were tied by the D.C. Circuit\u2019s earlier order and the law-of-the-case doctrine.[76]<\/a> The plaintiffs renewed their motion in the D.C. Circuit, which denied the request for interim relief in a one-paragraph opinion that offered no reason for its ruling and did not discuss the meaning of Supreme Court\u2019s earlier order.[77]<\/a> The plaintiffs then returned to the Supreme Court, where they finally obtained their sought-after relief by a 6-3 vote.[78]<\/sup><\/a><\/p>\n In a brief per curiam opinion, the Supreme Court vacated the district court\u2019s stay pending appeal, enabling the plaintiffs to secure relief against nonpaying tenants. The majority reasoned that the plaintiffs \u201care virtually certain to succeed on the merits of their argument that the CDC has exceeded its authority.\u201d[79]<\/a> Put simply, \u201c[t]he applicants not only have a substantial likelihood of success on the merits\u2014it is difficult to imagine them losing.\u201d[80]<\/sup><\/a>\u00a0In terms deriding the government for even relying on Section 264 of the Public Health Service Act, the majority concluded that \u201c[i]t strains credulity to believe that this statute,\u201d which empowers the CDC \u201cto implement measures like fumigation and pest extermination,\u201d nonetheless \u201cgrants the CDC the sweeping authority that it asserts.\u201d[81]<\/a> The reason is that the first and second sentences of Section 264 must be read together, which makes it clear that \u201cthe kinds of measures\u201d that the CDC may employ\u2014\u201dinspection, fumigation, disinfection, sanitation, pest extermination, and destruction of contaminated animals and articles\u201d\u2014\u201ddirectly relate to preventing the interstate spread of disease by identifying, isolating, and destroying the disease itself.[82]<\/sup><\/a> But \u201c[e]ven if the text were ambiguous,\u201d the Court added, \u201cthe sheer scope of the CDC\u2019s claimed authority\u201d under the statute \u201cwould counsel against the Government\u2019s interpretation.\u201d[83]<\/sup><\/a> Citing its 2014 Utility Air Regulatory Group<\/em> decision,[84]<\/a> the one on which Justice Kavanaugh had previously relied,[85]<\/a> the Court noted that \u201c[w]e expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.\u201d[86]<\/sup><\/a> Aside from granting the CDC \u201ca breathtaking amount of authority,\u201d the Court wrote, \u201c[i]t is hard to see what measures this interpretation would place outside the CDC\u2019s reach.\u201d[87]<\/sup><\/a> And that is without considering, the Court added, the \u201cunprecedented\u201d nature of the government\u2019s interpretation of the act, along with the possibility of imposing criminal penalties for its violation. [88]<\/a>\u00a0 <\/sup>In conclusion, the text invoked by the government \u201cis a wafer-thin reed on which to rest such sweeping power.\u201d[89]<\/sup><\/a> The balance of equities also came out in the plaintiffs\u2019 favor.[90]<\/a> While \u201c[i]t is indisputable that the public has a strong interest in combating the spread of the COVID\u201319 Delta variant,\u201d the Court concluded, \u201cour system does not permit agencies to act unlawfully even in pursuit of desirable ends.\u201d[91]<\/a> It is for \u201cCongress, not the CDC, to decide\u201d in the first instance whether rental payments are to be postponed nationwide.[92]<\/sup><\/a><\/p>\n Joined by Justices Sotomayor and Kagan, Justice Breyer dissented.[93]<\/sup><\/a> He found it \u201cfar from \u2018demonstrably\u2019 clear that the CDC lacks the power to issue its modified moratorium order.\u201d[94]<\/sup><\/a> In part, that was because, as Justice Breyer concluded, quarantines, which the CDC may impose, \u201carguably impose greater restrictions\u201d than the eviction moratorium.[95]<\/sup><\/a> \u00a0In part that was because \u201cthe lower courts have split on this question,\u201d which means that, \u201c[a]t a minimum, there are arguments on both sides.\u201d[96]<\/sup><\/a> He also concluded that the equities balanced in favor of leaving the stay in place pending appeal and that \u201cthe public interest is not favored by the spread of disease or a court\u2019s second-guessing of the CDC\u2019s judgment.\u201d[97]<\/sup><\/a><\/p>\n * * * * *<\/sup><\/p>\n The Supreme Court\u2019s Alabama Realtors 2<\/em> order did not resolve the merits of the appeal. That order only allowed the district court\u2019s judgment to take effect pending appeal.[98]<\/sup><\/a> The government technically could have pursued its appeal, and, in theory, the D.C. Circuit could have decided that, despite the Supreme Court\u2019s order in Alabama Realtors 2<\/em>, the interpretation of the act that it adopted previously remained the correct one.[99]<\/sup><\/a> The government, however, moved voluntarily to dismiss its appeal, and the D.C. Circuit granted the motion.[100]<\/sup><\/a> Accordingly, the district court\u2019s judgment in Alabama Realtors<\/em> is now final. The issue, however, remains a live one, given the lack of a Supreme Court ruling. The next section, therefore, will discuss the merits of the government\u2019s position.<\/p>\n III. The CDC\u2019s Overreach<\/strong><\/p>\n The Constitution contemplates the existence of federal agencies, like the CDC, because it refers to \u201cDepartments\u201d of the federal government.[101]<\/a> But the Constitution does not itself flesh out that skeleton by creating any such \u201cDepartments\u201d; it leaves that job to Congress and the President. Congress must create a \u201cDepartment\u201d by statute,[102]<\/a> and the President must fill it by appointing \u201cOfficers of the United States,\u201d[103]<\/a> who ultimately report to him.[104]<\/a> The result is that, unlike the President, who enjoys certain inherent powers,[105]<\/a> agencies possess only the authority that Congress has vested in them by law.[106]<\/a> Here, that law is the Public Health Service Act, specifically Section 264 of Title 42.<\/p>\n Among other things, Section 264 authorizes the CDC to promulgate regulations that the Director deems necessary to prevent the introduction of communicable diseases from foreign nations into this one or across state lines.[107]<\/a> To do so, the CDC Director may adopt rules governing inspection, fumigation, disinfection, sanitation, and, when necessary to prevent human infection, the destruction of pests, animals, or articles found to be so infected or contaminated as to be sources of \u201cdangerous infection to human beings,\u201d as well as \u201cother measures, as in his judgment may be necessary.\u201d[108]<\/a><\/p>\n The government\u2019s argument is simple and straightforward: The Public Health Service Act authorizes CDC Director Walensky[109]<\/a> to issue whatever rules she deems medically necessary to prevent the interstate transmission of the SARS-CoV-2 virus. The August 3 eviction moratorium is a far more modest step than a nationwide, across-the-board, exceptionless home quarantine order and therefore easily fits under the Director\u2019s Section 264(a) power. The emergence of the highly infectious \u201cDelta variant\u201d of the SARS-CoV-2 virus, along with the recent rise in the number of infected parties, principally unvaccinated individuals, makes it sensible to issue what is effectively a 60-day \u201cshelter in place\u201d order to reduce the number of new Delta-variant caused COVID-19 cases.[110]<\/a><\/p>\n The flaw in the government\u2019s argument is the tunnel-vision like approach it takes to one small part of a much larger statute.[111]<\/a> The government\u2019s approach to statutory interpretation resembles the actions taken by someone who, hoping to understand what a painter has created on a canvas, stands only a few inches in front of it and looks entirely straight ahead without moving his head or eyes. All that person could see is a very small portion of the painting, certainly not a forest, perhaps not even a tree or a branch, maybe only a leaf. Following that approach, someone looking up at the Sistine Chapel ceiling would see only two fingertips in close proximity, not God touching the hand of Man. No one would recommend viewing art that way, at least not if someone wanted to understand the image that the painter sought to convey to the world. Nor would anyone recommend judging the merits of a symphony by any one of its movements or by listening to only the string section, brass, woodwind, or percussion instruments. Finally, the same is true for the written word. Stop reading or watching \u201cThe Witness for the Prosecution<\/em>\u201d before the novelette, play, or movie ends and you will miss a critical part of the story. Whether or not the whole is greater than the sum of its parts, it is critical to consider the whole of a painting, symphony, play, or film to understand its message.<\/p>\n Legal experts would tell you to interpret a statute in the same manner. As Justice Elena Kagan explained two years ago, \u201cstatutory interpretation\u201d is \u201ca holistic\u00a0endeavor which determines meaning by looking not to isolated words, but to text in context, along with purpose and history.\u201d[112]<\/a> Words should be read, not \u201cin a vacuum,\u201d but \u201cin their context and with a view to their place in the overall statutory scheme.\u201d[113]<\/a>\u00a0The reason is that statutes are more than individual nouns, verbs, articles, adjectives, adverbs, and conjunctions. They are directions to the government or to private parties about what one or the other may or may not do. Fixating on a word, phrase, or clause to the exclusion of the remainder of a law is not just an unsophisticated way to learn what a statute means. It also disregards the law-drafting process, which, particularly in long bills, can have several different components that address a common subject, as well as the lawmaking process itself, in which Senators and Representatives vote on the entirety of a bill, not piece-by-piece. Logic dictates that we should follow the same approach to understanding law that we do in the case of art, music, and literature. The Supreme Court must agree because, in its order in Alabama Realtors 2<\/em>, the majority did just that.[114]<\/a><\/p>\n The Public Health Service Act consists of six titles that take up 39 pages in the Statutes at Large.[115]<\/a> Most of the act\u2019s titles speak to matters unrelated to the moratorium issue, such as the provisions dealing with the CDC\u2019s responsibilities to conduct disease-related research, to collect and publish health-related information, or to assist and fund state agencies with a common disease-control mission. Title III, however, deals with the general powers and responsibilities of the CDC.[116]<\/a> According to then-Surgeon General Thomas Parran, that title \u201cis in the main a reenactment into law of present widely scattered authority, some of which is very ancient.\u201d[117]<\/a> Even most of Title III, however, is only indirectly pertinent. Particularly relevant, however, are Parts B through E and G.<\/p>\n Part B is captioned \u201cFederal-State cooperation.\u201d It directs the CDC to assist the states with regard to \u201cthe enforcement of quarantine regulations made pursuant to this act,\u201d as well as state quarantine orders.[118]<\/sup><\/a> Part C is entitled \u201cHospitals, Medical Examinations, and Medical Care.\u201d[119]<\/sup><\/a> The CDC must \u201c[c]ontrol, manage, and operate\u201d all hospitals and facilities that Congress created for \u201cthe care, treatment and hospitalization of patients\u201d covered by the act,[120]<\/a> such as American merchant seamen and Public Health Service employees.[121]<\/a> In an emergency, the CDC may also treat parties not covered by the act.[122]<\/sup><\/a> The CDC is responsible for \u201cmaking such physical and mental examinations of aliens\u201d as required by the federal immigration laws[123]<\/sup><\/a> and may treat any person held under the \u201cquarantine laws\u201d or by federal immigration authorities.[124]<\/sup><\/a> At the request of a foreign vessel seeking to enter the United States, the CDC may provide necessary medical treatment \u201cat hospitals and other stations.\u201d[125]<\/a> The CDC may provide medical and psychiatric treatment, along with \u201crelated technical and scientific services,\u201d to prisoners in federal custody.[126]<\/a> Plus, the CDC may offer \u201cmedical, surgical, and hospital services and supplies\u201d to parties protected by the federal compensation laws, and various other specified federal employees.[127]<\/sup><\/a> Parts D and E address the hospitalization and treatment of people in the custody of the immigration service for leprosy, as well as convicts and narcotics addicts.[128]<\/sup><\/a><\/p>\n Now turn to Section 264 of Title 42. Section 264 became law as part of Part G of Title III, which involves \u201c[t]he quarantine activities of the [Public Health] Service,\u201d which was \u201cone of its oldest functions.\u201d[129]<\/a> Testifying before Congress when Section 264 was being considered, then-Surgeon General Parran described that portion of the bill, \u201c[w]ith minor exceptions,\u201d as being \u201cthe same as existing law.\u201d[130]<\/a> The two new items that he mentioned were the need to account for international \u201ccivil air navigation\u201d and \u201cto prevent the wartime introduction into this country of certain diseases not now on the quarantinable disease list.\u201d[131]<\/a> The Surgeon General did not ask Congress for the power to intrude into landlord-tenant relationships governed by state law.[132]<\/a><\/p>\n As noted above, Title III defines the duties and powers of the CDC.[133]<\/sup><\/a> To \u201ccontrol communicable diseases,\u201d it empowers the CDC Director to adopt regulations necessary to prevent the transmission of an infectious disease across the nation\u2019s borders or from one state to another. To prevent transmission of a harmful pathogen\u2014that is, \u201c[f]or purposes of carrying out and enforcing\u201d those regulations\u2014the Director may inspect, fumigate, disinfect, sanitize or destroy animals or articles that are \u201cso infected or contaminated\u201d that they are a source of \u201cdangerous infection to human beings,\u201d as well as take \u201cother measures\u201d that he deems necessary.<\/p>\n What \u201cother measures\u201d can a Director deem necessary? One would be to define the steps that the federal, state, and local governments should take to enforce a federal or state quarantine.[134]<\/a> Regulations could impose reporting requirements on businesses, like airlines and trains, that carry passengers in interstate commerce.[135]<\/a> Regulations could require travelers from a foreign country with a large number of COVID-19\u00a0 patients to be quarantined for a certain number of days after entry.[136]<\/a> And so forth.[137]<\/a> Those are medical judgments within the competence of an agency responsible for preventing the interstate transmission of disease. They are also similar to the types of judgments that the preceding Parts of Title III direct and empower the CDC to accomplish. The CDC is even authorized in an emergency itself to care for parties infected with or exposed to SARS-CoV-2, which it can do because the CDC has medical facilities and \u201cquarantine stations\u201d for patient treatment.[138]<\/a><\/p>\n What Congress did not empower the CDC to do, was to order third parties to accept parties infected with or exposed to a dangerous pathogen. For example, the CDC cannot order a landlord to house such people in unused apartments, let alone in ones already occupied. The CDC cannot order property owners to allow such parties to live in their suburban backyards or rural fields, let alone build dormitories for them. Yet that is the power the CDC claimed to possess under Section 264: the power to draft private parties into the quarantine business by ordering them to admit onto their land or into their homes people potentially or actually suffering from a highly contagious and potentially fatal disease\u2014in other words, potentially everyone\u2014who cannot meet their rental obligations. The term \u201cother measures\u201d does not remotely authorize the CDC to go that far, yet that is exactly what the Biden Administration has asked the courts to endorse. The District of Columbia district court was correct to reject that extravagant claim.<\/p>\n That conclusion should surprise no one. States and localities have long faced the public health problems caused by the introduction of diseased people, fauna, or flora into their jurisdictions, and each state has addressed that concern through the interdiction or quarantine of disease-bearing people, animals, and items.[139]<\/a> Congress could have resolved this issue for the nation by exercising its power to regulate international or foreign commerce.[140]<\/sup><\/a> Instead, Congress primarily left each state to handle the matter through its own quarantine laws.[141]<\/a> After passing some quarantine-related legislation beginning in 1878,[142]<\/a> Congress tasked one agency with responsibility to address this subject. The desire was to create a consolidated and codified body of laws, rather than \u201ca patchwork\u201d of disorganized acts of Congress.[143]<\/a><\/p>\n In so doing, Congress directed the CDC itself<\/em> to address this problem, by authorizing the CDC to establish and operate quarantine facilities, or to work with state and local public health authorities for them to care for patients. Nothing in the Public Health Service Act remotely suggests that Congress conscripted private parties into patient care or authorized the CDC to do so, despite the urgency of the need. The archetypical examples of laws with that effect are the ones authorizing a draft of civilians into the armed forces to fight in the nation\u2019s wars.[144]<\/a> Congress had enacted two such statutes prior to 1944. The Selective Service Act of 1917 expressly empowered the President to draft private parties into the armed forces to fight in World War I,[145]<\/sup><\/a> and the Selective Training and Service Act of 1940 explicitly adopted a peacetime conscription.[146]<\/a> Accordingly, Congress knows how to draft legislation forcing individuals into federal service over their objection. The Public Health Service Act is not such a law. It nowhere empowers the President or the CDC to conscript property owners into the CDC\u2019s service by making them use their property as ersatz battlefield MASH units. To be sure, the size of this pandemic would have overwhelmed the CDC\u2019s existing facilities, forcing Congress to fund the creation of what would be tantamount to new temporary hospitals or \u201cquarantine stations\u201d under the CDC\u2019s control.[147]<\/a> But the SARS-CoV-2 pandemic was not the first time that the nation had been the victim of a massive potentially fatal viral outbreak. Aside from the yearly influenzas that hit the nation every winter, the Spanish Flu of 1918 told anyone who wanted to know what the size and danger of a new pandemic could be. That the CDC itself never claimed to possess such transformative authority prior to 2020 is powerful evidence that Congress never gave it to the agency.[148]<\/a><\/p>\n The government also did not sell Section 264 to Congress on that basis. At a House hearing on a bill that (as amended) became the Public Health Service Act,[149]<\/a> Alanson Wilcox, Assistant General Counsel for the Federal Security Agency, was one of the government\u2019s principal witnesses. His task was to explain the meaning of each provision in the bill. With regard to the proposed Section 361, Wilcox said that it carried forward a provision in a 1893 law authorizing the Treasury Secretary to promulgate port quarantine regulations if the state or local rules were nonexistent, inadequate, or poorly enforced.[150]<\/a> Section 361 would modify that law by eliminating the need to show that state or local rules or governments were not up to the task of enforcing a quarantine.[151]<\/sup><\/a> \u201cThe States as I understand it,\u201d Wilcox testified, \u201chave wholly withdrawn from the field of foreign quarantine regulation,\u201d and \u201cFederal regulation has been confined to matters pertaining to the interstate movement of people or things over which the States have both constitutional and practical difficulties in achieving effective control.\u201d[152]<\/sup><\/a> \u201cIn eliminating the conditions upon the exercise of Federal regulatory power,\u201d Wilcox concluded, \u201cwe believe that we have eliminated nothing of substance.\u201d[153]<\/sup><\/a> At a Senate hearing on the bill passed by the House, then-Surgeon General Parran said that the House bill \u201cclarified\u201d the Public Health Service\u2019s \u201cinterstate quarantine authority\u201d and \u201csomewhat extended\u201d that authority \u201cin time of war\u201d by virtue of \u201cPresidential order,\u201d a revision that \u201cmay be very important\u201d to \u201cprotect troops and war workers\u201d given \u201cthe possibility that strange diseases may be introduced in the country and become a threat\u201d when those parties return home.[154]<\/a> \u201cFlexibility in dealing with such contingencies would be very helpful.\u201d[155]<\/a> Wilcox and Parran did not say anything remotely suggesting that what is now Section 264 empowers the CDC to do anything more than promulgate quarantine enforcement rules.<\/p>\n But there is more. A host of other considerations also demonstrate why the government\u2019s broad interpretation of Section 264 is quite mistaken.<\/p>\n First, because the government offered no limiting principle that would cap the CDC Director\u2019s authority, the government\u2019s interpretation would have allowed the CDC unlimited discretion. In its Alabama Realtors 2<\/em> order, the Supreme Court identified a few \u201cother measures\u201d that the CDC would be allowed to demand, such as ordering grocery stores to provide free food home delivery.[156]<\/sup><\/a> Others also readily come to mind. After all, the eviction problem arose because out-of-work tenants could not pay their rent because they could not earn their wages. Why not just have the CDC order the tenants\u2019 employers to continue paying their tenant-employees? That would enable tenants to pay their rent, but could impoverish their employers, many of whom likely were small businesses, such as restaurants, not Fortune 50 companies. To remedy that problem, the CDC could also order a diner\u2019s regular customers to send the owner money so that the eatery would not go under. And so forth. It would be worse than silly to interpret the term \u201cother measures\u201d to turn the CDC into America\u2019s version of the Soviet Union\u2019s Gosplan, its central economic planning agency.<\/p>\n Second, the CDC\u2019s sought-after power would not be limited to COVID-19 or even pandemics. Nothing in the text of the statute requires that a pathogen, though \u201cdangerous,\u201d be potentially fatal to a broad swath of the population, and the influenza viruses that strike America every winter (unfortunately) always prove fatal to some people. Under the government\u2019s interpretation, the CDC Director would have the power to issue not only her August 3 order, but also the authority to forestall evictions on a yearly, if not ongoing, basis, because Americans regularly suffer from communicable diseases other than COVID-19 that are dangerous to some people. Private property would remain private only until the government decided that it could be better used by the government and therefore should be taken by forced occupation of infectious parties. Under no circumstances can the terms \u201cnecessary\u201d or \u201cother measures\u201d be read to have empowered the CDC to take steps like those without Congress having clearly committed to that course of action.[157]<\/sup><\/a><\/p>\n Third, as recent history proves, the CDC can renew or extend its moratoria repeatedly, or at least it believes it can. The CDC issued its first moratorium in September 2020 and renewed it in January, February, June, and August 2021. There is no guarantee that the agency won\u2019t renew the order again. The text of Section 264 does not limit the number of extensions or new orders the CDC can enter, or the length of any particular one. There is also no guarantee that new variants of the virus will not replace the Delta variant that the CDC cites to justify its August 3 order (there are letters left in the alphabet). Tenants could occupy an owner\u2019s property for a year or more past the year-plus they have already done so. It is unreasonable to read Section 264 as empowering the CDC to tell an owner that he or she must suffer an occupation by tenants unable to pay rent based on the skimpy \u201cnecessary\u201d or \u201cother measures\u201d language.<\/p>\n Fourth, if Section 264 truly gave the CDC Director the power to impose whatever order she deemed necessary to prevent the interpersonal transmission of the virus, there is a very serious question whether the statute could survive challenge under the Delegation Doctrine. The Supreme Court recognized that doctrine in two cases decided in the 1930s\u2014Panama Refining Co. v. Ryan<\/em>[158]<\/sup><\/a> and A.L.A. Schechter Poultry Corp. v. United States<\/em>[159]<\/sup><\/a>\u2014<\/em>which held unconstitutional acts of Congress that told the government little more than to \u201cfix\u201d the Depression\u2019s adverse effects on the economy. Since then, the Court has regularly upheld statutes over delegation doctrine challenges.[160]<\/sup><\/a> Yet, suggesting that the cavalry might be on the way, in 2019 five justices concluded either that the doctrine is still alive and well or that they are willing to resurrect it.[161]<\/sup><\/a> Interpreting the Public Health Service Act to allow the CDC Director a prerogative to decide what \u201cother measures\u201d should be defined at penalty of incarceration might just persuade the Court to roll away the stone.[162]<\/sup><\/a><\/p>\n Fifth, as the Supreme Court noted in Alabama Realtors 2<\/em>, the Public Health Service Act authorizes criminal prosecution, including fines and incarceration up to one year, for a violation of any CDC regulation.[163]<\/sup><\/a> To worsen matters, the act makes the violation of any such regulation a strict liability offense because, unlike the offense of leaving a quarantine area, the act does not require the government to prove that a party acted with any culpable mental state at all\u2014not willfully, or even knowingly.[164]<\/sup><\/a> It is unreasonable to believe that Congress intended to empower the government to imprison someone for violating any imaginable regulation that the CDC could devise that he or she was wholly unaware of. Indeed, unless the list in Section 264 of actions that the CDC can take to prevent the spread of disease, such as fumigation, limits the \u201cother measures\u201d term, that provision is subject to challenge under the Void-for-Vagueness Doctrine because it literally gives the CDC Director the power to issue any order she deems \u201cnecessary\u201d while affording a \u201cperson of ordinary intelligence\u201d no notice of what is prohibited.[165]<\/sup><\/a><\/p>\n Sixth, the CDC\u2019s interpretation of Section 264 legally compels a property owner to suffer the presence of a lessee on his or her property without payment of rent. That is an unconstitutional taking of the landowner\u2019s property. As the Supreme Court made clear earlier this year in Cedar Point Nursery v. <\/em>Hassid<\/em>, \u201cgovernment-authorized physical invasions\u201d of someone else\u2019s property \u201care physical takings requiring just compensation,\u201d regardless of whether they are \u201cpermanent or temporary.\u201d[166]<\/sup><\/a> That is precisely what the CDC has ordered here. The order forces an owner to accept a government-imposed squatter for as long as a moratorium is in effect. Unlike a rent control statute, which limits only increases in what can be charged for a particular unit as long as the lessee is current on his or her rent,[167]<\/sup><\/a> the CDC\u2019s order entitles a tenant to reside in property that he or she no longer has a legitimate right to occupy without paying rent.<\/p>\n It pays no disrespect to the CDC or to Congress to say that the former should make only medical judgments and the latter only economic and social policy ones. The CDC can decide how to treat people infected with a communicable disease, or to handle creatures, bedding, clothes, and the like that have become infested with a pathogen and therefore must be sanitized or disposed of, in the same way that hospitals ordinarily treat patients or manage used hypodermics and gauze pads. Those are quintessentially medical judgments. As the Supreme Court acknowledged in Roman Catholic Diocese of Brooklyn v. Cuomo<\/em>,[168]<\/sup><\/a> physicians and other public health experts possess \u201cspecial expertise and responsibility\u201d when it comes to making health-care decisions, not legal or policy judgments.[169]<\/sup><\/a> Congress can\u2014and should\u2014decide how to balance the competing interests of both sides\u2014unemployed tenants versus their landlords and<\/em> tenants who do<\/em> pay their rent, both of whom have legitimate interests the administration has ignored[170]<\/sup><\/a>\u2014during a pandemic in the same manner that Congress must decide how to treat the unemployed vis-\u00e0-vis employers and the employed during a recession. That is paradigmatically an economic or social judgment, and the democratic process selects members of Congress to represent the interests of their constituents. We increase the likelihood that the CDC and the political process will each make the right or best decision if we restrict each one to its lane and don\u2019t try to force either one to cross over.<\/p>\n When the Public Health Service Act is read in its entirety, what becomes clear is this: Congress sought to empower the CDC to prevent or provide medical treatment for infectious disease problems that could occur because of a contaminated person, animal, insect, or article, and to assist the states in their efforts to do the same. The text of the act speaks to medical treatment decisions, not landlord-tenant problems, macroeconomic policy judgments, or legal issues, and to reliance on government facilities, federal, state, or local, or the voluntary actions of private parties, to quarantine people or disinfect property, not the conscription of private parties into government service. The conclusion that Section 264 empowers the CDC Director to do whatever he deems necessary to prevent the spread of an infectious disease could be reasonable only if the courts were willing to make the CDC Director into a modern-day Nietzschean \u00dcbermensch, if not \u00dcberlandlord, empowered to do \u201cwhatever it takes\u201d to prevent the spread of an infectious disease, regardless of the decisions of private parties not to assist that endeavor.<\/p>\n IV. The Lasting Consequences of the CDC\u2019s Order<\/strong><\/p>\n Where does that leave us? Twice Congress gave the CDC the necessary authority to carry out a chief executive\u2019s wishes, but the last of those statutes expired months ago. Biden directed the CDC to find a legal justification for a result that even he knew the law does not permit. The CDC faithfully followed orders, once again pinning its hopes on a gauzy phrase in a nearly 80-year-old statute never used before 2020 as an eviction moratorium. A majority of the Supreme Court said that the Public Health Service Act does not remotely authorize such an order. That conclusion was implicit in the Court\u2019s Alabama Realtors 1<\/em> order, but the Court\u2019s Alabama Realtors 2<\/em> order made the point so clearly that even someone blind could see it. Indeed, given Biden\u2019s decision to ignore the message of the Supreme Court\u2019s Alabama Realtors 1<\/em> order, the Court likely went out of its way in Alabama Realtors 2<\/em> to say, \u201cAnd we mean it.\u201d<\/p>\n By rights, the CDC\u2019s August 3 order should have a very short half-life remaining. Given the Supreme Court\u2019s Alabama Realtors 2<\/em> order, any judge who rules that the Public Health Service Act empowers the CDC Director to manage landlord-tenant relations on an ongoing basis has willfully distorted the properly limited judicial role of statutory interpretation and has engaged, quite literally, in statutory construction<\/em>. Even Biden, who directed the CDC to issue its most recent order while simultaneously admitting that it would likely be struck down,