A longstanding federal law, codified at 42 U.S.C. § 264(a), authorizes the Director of the CDC to implement such “measures, as in his judgment may be necessary” “to prevent the spread of communicable diseases from one State or possession into any other State or possession.”  Pursuant to this authority, the CDC imposed a temporary nationwide moratorium on the eviction of certain tenants to curb the spread of COVID-19.  The appellants in this case, an apartment management company and an association of landlords, challenged the eviction moratorium in federal court, arguing that the moratorium did not fit within the authority delegated to the CDC by the statute, or in the alternative, that the statute constituted an impermissibly broad delegation of legislative authority.  They asked for a preliminary injunction allowing evictions to resume while the litigation was pending.

The U.S. District Court for the Western District of Louisiana rejected that argument, ruling that the statute authorized the moratorium, and Congress’s delegation of authority to the CDC was constitutional.  On appeal to the U.S. Court of Appeals for the Fifth Circuit, CAC filed an amicus curiae brief in support of the federal government, urging the Fifth Circuit to affirm the judgment of the court below.

Our brief focuses on explaining why the statute, as understood to authorize the eviction moratorium, did not constitute an impermissible delegation of legislative authority.  It began by explaining that the Founders embraced a robust administrative state and frequently permitted broad delegations of legislative authority to executive officials.  From the United States’ earliest days, Congress relied on the delegation of legislative authority to address the nation’s most pressing issues.

Drawing on recent groundbreaking scholarship, our brief then elaborated on three particular examples of delegations by Founding-era congresses, beginning with the First Congress’s delegation of authority to the executive branch to address the national debt, one of the chief crises in the wake of the Revolutionary War.  Not long after, Congress created a statutory scheme that delegated broad legislative authority to the equivalent of a massive modern-day administrative agency to levy a direct tax on property.  Finally, Congress in 1796 empowered the President to aid in the execution of quarantines and state health laws in order to address a series of deadly yellow fever epidemics.  Collectively, these examples demonstrate that the Founders recognized only a limited constraint on Congress’s authority to delegate its legislative power—one that closely aligns with the Supreme Court’s current rule that broad delegations of legislative authority are permissible so long as they lay down an “intelligible principle” to which the agency is directed to conform.

Drawing on this history, our brief next argued that 42 U.S.C. § 264(a), as understood to authorize the federal eviction moratorium, did not constitute an unconstitutional delegation of legislative authority.  Congress authorized the CDC to implement measures deemed “necessary” for purposes of “prevent[ing] the introduction, transmission, or spread of communicable diseases.”  This broad but clearly defined delegation of authority was consistent with Supreme Court precedent, including prior cases upholding delegations of legislative authority for purposes of protecting the “public health,” as well as constitutional text and history, which demonstrate that the Constitution was written to empower the federal government, including administrative agencies, to provide flexible and, when necessary, robust responses to a wide range of scenarios.

While this appeal was pending, other challenges to the eviction moratorium also progressed.  In one case, Alabama Association of Realtors v. Department of Health and Human Services, the U.S. District Court for the District of Columbia held that 42 U.S.C. § 264(a) did not grant the CDC the authority to implement the eviction moratorium and enjoined it.  In a “shadow docket” ruling, the Supreme Court agreed and vacated a stay of the district court’s injunction, effectively ending the moratorium.

In light of that decision, the appellants in this case moved to dismiss their appeal.  The Fifth Circuit granted the appellants’ motion and entered a judgment to that effect.