By Nicholas A. Traver.
On August 26, in Alabama Association of Realtors v. Department of Health and Human Services, the United States Supreme Court vacated the Center for Disease Control’s (“CDC”) eviction moratorium. The Court held that the CDC’s reliance on section 361 of the Public Health and Service Act (“PHSA”) (found at 42 U.S.C. 264) for authority to create and enforce the moratorium was an overstep of power. For such broad power to be exercised, Congress would have had to explicitly address the issue. To best understand the Court’s decision and its reasoning, it is important to review the events of 2020 and 2021 that led to the ban on evictions.
Brief Summary of the Moratorium Timelines
THE CARES ACT: Two weeks after declaring COVID-19 a national emergency, Congress passed the CARES Act and then-President Trump signed it into law, putting in place a 120-day eviction moratorium on select federally assisted rental properties.
TRUMP’S EXECUTIVE ORDER: On August 8, 2020, by way of executive order, then-President Trump directed the Secretary of Health & Human Services and the Director of the CDC to consider if halting evictions would help stop the spread of COVID-19 across state lines.
THE CDC ENACTS THEIR FIRST MORATORIUM: Nearly a month later, the CDC issued their first moratorium on evictions, relying on section 361 of the PHSA. It determined the halt to be a “reasonably necessary measure” to help stop the spread of COVID-19 by allowing otherwise-evicted individuals, who would otherwise be out looking for new homes and potentially increasing transmission, to stay in their current homes and isolate. The CDC’s moratorium applied to all rental units, not just those federally assisted, and prohibited landlords from evicting tenants who provided documentation of their COVID-19 related hardships. The moratorium imposed criminal charges of up to one year in jail and fines of up to $500,000 on landlords who proceeded with eviction of a COVID-19 impacted tenant. These exceeded the standard limits on criminal charges and fines applicable to section 361.
CONGRESS’S 30-DAY EXTENSION: The CDC’s initial moratorium was slated to expire on December 31, 2020. However, by way of the Consolidated Appropriations Act (the “Act”), Congress extended the moratorium by one month, pushing the new expiration date to January 31, 2021.
THE CDC’S EXTENSIONS: Two days before the expiration date of Congress’s extension of the Act, the CDC issued its own extension, pushing the expiration date to the end of March. New findings demonstrating the increasing severity of the pandemic as well as projections created from states who lifted bans on evictions led the CDC to conclude that “evictions substantially contribute to COVID-19 transmission” and that an extension was necessary. The CDC extended the moratorium again through the end of June.
Alabama Association of Realtors: The Supreme Court’s Analysis
The main issue in this case is not whether the CDC has authority over national quarantines. Though rarely used on such a large scale in modern times, the imposition of quarantines by the government is not a recent creation of power and has been around since Colonial America. The CDC has had sole authority over foreign and interstate quarantines since 2000. In 2002, it was given the authority to impose quarantines on not only contagious people, but also those reasonably believed to be in pre-communicable stages so long as infection posed a great harm to others. Whether or not a moratorium facilitates quarantining is also not an issue because it is demonstrated to reduce both homelessness and the need for individuals to relocate to new congregate living situations. In short, the CDC has the power to quarantine, and its moratorium was made in pursuit of this power.
Rather, the main issue in the case lies with the sweeping implications of the CDC’s moratorium and if these implications are congruent with their granted authority. The text of section 361 is vague. A national halt on evictions has “deep economic and political significance” in addition to its potential quarantine benefits. Furthermore, Congress already passed their own moratoriums on evictions. These issues may place the CDC’s moratorium outside the bounds of section 361’s authority because its implications may extend past section 361’s disease related goals. In short, the Court must clarify the boundaries of section 361 and determine if the CDC’s moratorium was indeed a “necessary” action under it.
DELEGATED POWER AND CHEVRON DEFERENCE TEST: Congress has the power to delegate authority “carrying the force of law” to agencies like the Health and Human Services (“HHS”) and the CDC. A good example of this are delegations to the Environmental Protection Agency to set air quality standards or to the Federal Communications Commission to issue licensing requirements. Congress’s delegations of authority need to have an “intelligible principle” that instructs the agency of the limits of that authority. Essentially, Congress is supposed to give clear instructions to the agency.
Issues arise when the delegated authority is vague and its use appears to extend past what Congress may have intended. In these situations, the Court must interpret the statute to clarify its ambiguity. When authority carrying the force of law granted to an agency individually is so vague as to make its exercise ambiguous as to whether or not it is within what Congress intended, the Court uses the Chevron Deference framework. Under Chevron, the Court first asks if Congress gave explicit instruction on the matter, and if not, the Court then analyzes if the agency’s interpretation and exercise of the vaguely delegated power is permissible. The Court looks to the text of the statute and determines if the agency’s interpretation of it was reasonable by considering if the circumstances and congressional purpose behind its enactment supports the interpretation.
THE PUBLIC HEALTH SERVICE ACT: The PHSA was originally signed into law by President Franklin D. Roosevelt in 1944 and has since undergone many amendments. Section 361 grants the HHS Secretary the power to “make and enforce such regulations as in his judgment are necessary to prevent . . . communicable diseases,” quarantine people to prevent interstate or international spread of disease, and enforce “other measures, as in his judgment may be necessary.” These powers were delegated from the HHS Secretary to the Director of the CDC by way of regulation.
THE COURT’S CHEVRON ANALYSIS OF SECTION 361: When a statute is interpreted, the Court assumes every word is functional. If Congress wanted the CDC to take any measure necessary, there would be no need to spell out acceptable measures as they did. The CDC’s interpretation failed to give effect to all the words within section 361. Interpretations causing serious constitutional problems, like the CDC inserting itself into the landlord–tenant relationship, are generally avoided without clear congressional intent. Additionally, Congress is expected to be explicitly clear if they intend to allow an agency to make decisions with “deep economic and political significance.” Congress had already addressed the moratorium twice on a nationwide level, and at least 43 states had enforced some kind of ban on evictions during the pandemic. The limiting text and actions of Congress towards eviction bans show the issue of evictions was beyond what Congress had intended to give to the CDC. The Court reasoned that such a broad interpretation of section 361 would be nearly limitless, and Congress could not have intended to give nearly limitless power to the CDC in such an ambiguous manner. As such, the Court vacated the moratorium order.
Impact to Arizona Residents
For Arizona residents who fear eviction, the decision in Alabama Association of Realtors is not all bad news. It clears the way for states and Congress to continue to implement their own regulations as appropriate. If Arizona or Congress decline to impose more restrictions on evictions, Arizona landlords and tenants will be subject to Arizona’s property laws, most of which can be found at Title 33 of the Arizona Revised Statutes.
