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 plaintiffs-appellees in this case, real estate management companies and landlords, challenged the eviction moratorium in federal court, arguing that the moratorium does not fit within the authority delegated to the CDC by the statute, or in the alternative, that the statute constitutes an impermissibly broad delegation of legislative authority.

The U.S. District Court for the Western District of Tennessee agreed with those challenging the moratorium, holding that the statute does not authorize the eviction moratorium, and that if it did, it would likely constitute an unconstitutional delegation of Congress’s authority to the CDC.  On appeal to the U.S. Court of Appeals for the Sixth Circuit, CAC filed an amicus curiae brief in support of the federal government, urging the Sixth Circuit to reverse the judgment of the court below.

Our brief explains why the statute, as understood to authorize the eviction moratorium, does not constitute an impermissible delegation of legislative authority.  It begins 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 elaborates 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.

Consistent with this history, our brief next argues that 42 U.S.C. § 264(a), as understood to authorize the federal eviction moratorium, does 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 is 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 empowers the federal government, including administrative agencies, to provide flexible and, when necessary, robust responses to a wide range of scenarios.

On July 23, 2021, the Sixth Circuit affirmed the District Court’s judgment that federal law does not grant the CDC the authority to impose eviction moratoriums to stop the spread of COVID-19.