The Supreme Court last week issued an emergency order effectively striking the COVID-19 eviction moratorium issued by the Centers for Disease Control. The CDC issued the moratorium in order to address a public-health emergency—the “likelihood of mass evictions” in the middle of a pandemic, and the untold public-health consequences that will result from these tenants’ displacements. Still, the Court said that the CDC lacked statutory authority to implement the moratorium and issued a full-throated denunciation of the measure.
If the ruling gave you whiplash, there’s good reason why. You might remember that the Court, just three years ago, upheld a similarly muscular exercise of executive authority, President Trump’s travel ban. In sharp contrast to the Court’s ruling on the CDC’s moratorium, the Court in Trump v. Hawaii held that the President acted well within his statutory authority when he categorically restricted entry into the United States by citizens of eight countries in the name of national security.
The statutes in the two cases delegated similarly broad authority. The executive actions in the two cases responded to similarly dire and immediate emergencies, at least by the executive’s reckoning. And yet the Court ruled that the Biden administration lacked statutory authority, while the Trump administration had it.
Coming just three years after its travel-ban case, the Court’s ruling on the CDC moratorium lays bare the Court’s shameless, nakedly partisan approach to executive authority.
To see this, let’s look more carefully at the statutory texts. The Court in Trump v. Hawaii held that the Immigration and Naturalization Act, 8 U.S.C. § 1182(f), authorized President Trump’s travel ban. That section says,
Whenever the President finds that entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem appropriate.
In contrast, the Court in Alabama Association of Realtors held that the Public Health Service Act, 42 U.S.C. § 264(a), did not authorize the CDC’s moratorium. That section reads,
The Surgeon General, with the approval of the [Secretary of Health and Human Services], 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.
In short, the INA authorizes the President to take sweeping action upon a presidential “find[ing],” while the Public Health Services Act authorizes the CDC to take sweeping action based on the Surgeon General’s “judgment.” If anything, this difference seems to grant broader authority to the CDC. That’s because the INA’s “find[ing]” trigger implies that the President must formally justify their action (with findings), while the Public Health Service Act’s “judgment” trigger implies no such justification. The Act leaves it to the Surgeon General’s unrestricted judgment.
But the Court ruled that the INA authorized the travel ban, while the Public Health Service Act did not authorize the moratorium. Indeed, the Court said that the travel ban “falls well within” the INA, while “it strains credulity to believe” that the Public Health Service Act authorizes the moratorium.
So what justifies this difference? Maybe this: the INA delegates authority to the President, while the Public Health Service Act delegates authority to the Surgeon General. But nothing in either ruling turns on this difference. Indeed, the Court in Trump v. Hawaii cited precedent involving delegations of authority to other executive officers (like the CIA director).
So maybe this: the INA delegates authority touching on the President’s foreign affairs powers, while the Public Health Service Act delegates authority touching on the executive’s domestic public-health powers. But again, nothing in either ruling turns on this difference. In particular, the Court in Trump v. Hawaii doesn’t give any special deference to the President because of some claimed enhanced executive authority over foreign affairs. Instead, the Court treats the question like any other routine question of statutory authority—just like it treated the CDC’s moratorium.
Or maybe this: the INA delegates authority to take particular action (to suspend immigration), while the Public Health Service Act delegates authority to take any action. But in fact the INA delegates just as broad-sweeping authority as the Public Health Service Act, within the context of immigration. In other words, the INA delegates as much authority as any official could have in immigration—to suspend all immigration—just as the Public Health Service Act delegates as much authority as any official could have in public health. And the fact that the Public Health Service Act goes on to list specific examples of how the Surgeon General might exercise this authority—examples that do not include an eviction moratorium—simply cannot limit the otherwise broad delegation of authority in the Act, and the caveat at the end of the list that the Surgeon General can take “other measures, as in his judgment may be necessary.”
Finally, maybe this: past presidents have implemented some form of travel ban under the INA, while the CDC has never implemented an eviction moratorium under the Public Health Service Act. But the limited prior exercises of the authority to restrict immigration in Trump v. Hawaii hardly supported the president’s much broader sweeping travel ban. Moreover, the absence of a prior exercise of authority under the Public Health Service Act cannot limit that authority when the authorizing text is so clear. Finally, the absence of a prior eviction moratorium only means that the CDC has never had to implement a moratorium; it doesn’t mean that it can’t implement a moratorium.
All this is to say that the Court’s approach in restricting the CDC’s authority to implement its eviction moratorium represents a 180-degree turn from its approach in upholding President Trump’s travel ban, just three years ago. The cases put on full display the Court’s unabashed partisan approach to executive authority.