BLOG: Attacks on the Eviction Moratorium Are Attacks on the Administrative State
Last month, CDC Director Rochelle Walensky signed an order extending the federal eviction moratorium until the end of July. The moratorium, which temporarily prevents landlords from evicting tenants who cannot pay rent, is designed to prevent the spread of COVID-19 based on evidence that evictions force low-income individuals into homeless shelters and other congregate living settings, where the spread of COVID-19 remains rampant.
Conservative groups around the nation have attacked the eviction moratorium on numerous grounds. But there is one common thread running through all the attacks: a condemnation of the modern administrative state and the power of agencies to craft responses to national crises. In almost every lawsuit challenging the eviction moratorium, its opponents have argued that the federal law that the CDC invoked as authority for the moratorium, if interpreted to authorize the moratorium, would violate a legal concept known as the “nondelegation doctrine.”
In simple terms, the nondelegation doctrine is the idea that Congress cannot give away its power to make laws to other branches of government. But in practice, the Supreme Court has consistently permitted broad delegations of legislative authority, holding that Congress may delegate its legislative authority so long as it provides an “intelligible principle” to guide that discretion. Only twice in our nation’s history has the Supreme Court struck down a law for violating the nondelegation doctrine.
Critics of the Supreme Court’s nondelegation cases frequently make what sound like originalist arguments, claiming that the Founding generation believed in strict limitations on Congress’s ability to delegate. However, a recent flurry of legal scholarship undermines those arguments, demonstrating that, to the extent that there were any limits on Congress’s power to delegate broad, discretionary authority to executive branch officials at the Founding, those limits were very modest (while Julian Davis Mortenson and Nicholas Bagley argue that there were none).
Christine Kexel Chabot has explained that delegation was the First Congress’s solution “to what was arguably the greatest problem facing our fledgling Republic: a potentially insurmountable national debt.” Kevin Arlyck has provided a detailed analysis of a 1790 law, which granted the Secretary of the Treasury expansive and unreviewable authority to cancel statutory penalties for certain violations of federal law. And in a 168-page-deep dive of the history of the “direct tax” of 1798, Nicholas Parrillo has demonstrated that “the largest federal administrative endeavor, outside the military, of the Constitution’s first two decades” involved broad delegations of legislative authority for purposes of assessing and collecting property taxes.
Drawing on this history and scholarship, Constitutional Accountability Center has filed amicus briefs in two recent cases involving challenges to the eviction moratorium. In these briefs, we explain why the moratorium is constitutional. We explain, for example, that the law authorizing the eviction moratorium does provide meaningful, judicially reviewable boundaries—i.e., an intelligible principle—to guide the Director’s authority because it requires that a measure be “necessary” in the “judgment” of the CDC Director for the purpose of preventing the “spread of communicable diseases.”
So far, none of these cases have made it up to the Supreme Court on the merits (a request by one group of landlords to vacate a stay of a lower court’s injunction of the moratorium was recently denied by the Court). But whether these cases make it to the Court or not, the conservative call for a more stringent nondelegation doctrine is unlikely to go away. In Gundy v. United States, Justice Gorsuch, joined by Chief Justice Roberts and Justice Thomas, expressed just that sentiment. And in a separate concurrence, Justice Alito voiced openness to Justice Gorsuch’s argument.
What would it mean if the Court adopted a more stringent nondelegation doctrine? The change in the law could have profound consequences. Again, just take the eviction moratorium. For Congress to pass a measure of that sort in the first instance could take months—even years (Congress did extend and arguably ratify the CDC’s moratorium in the 2021 Appropriations Act).
By the time Congress reached an agreement, thousands of low-income individuals might have already been forced out of their homes and perhaps even died of COVID-19. Administrative agencies, particularly those with highly technical expertise like the CDC, avoid that result with their quick actions in response to emergency situations.
Of course, administrative agencies—just like Congress—must be held accountable. But conservatives’ attempts to tie agencies’ hands with a stringent and ahistorical limit on Congress’s authority to delegate are not about accountability; they are about defeating the power of agencies to implement key progressive policies by exercising the authority that Congress has already given them.