Deep Dive Episode 194 – Examining the CDC’s Eviction Moratorium

[Music and Narration]

 

Introduction:  Welcome to the Regulatory Transparency Project’s Fourth Branch podcast series. All expressions of opinion are those of the speaker.

 

Host:  On August 24th, the Regulatory Transparency Project hosted a webinar discussion on the CDC’s eviction moratorium. The following is a recording from that event. We hope you enjoy.

 

Nathan Kaczmarek:  Hello and welcome to this Regulatory Transparency Project webinar. Today, we’ve got a timely and important topic. We’ll be discussing the CDC’s eviction moratorium. My name is Nate Kaczmarek. I am Vice President and Director of RTP. As always, please note that all of expressions of opinion on this webinar are those of our guests. 

 

Today, we’re delighted to have Kimberly Hermann join us once more as our moderator. Kim is the general counsel for the Southeastern Legal Foundation. Her career has been dedicated to promoting individual liberty, the rule of law, and accountability in government. Kim advances these principles through litigation in federal and state courts in the areas of property rights, free speech, government overreach, and economic liberties. If you’d like to learn more about Kim and all of our speakers today, you can visit our website regproject.org. That’s R-E-G project dot org, where we have their complete bios. 

 

In a moment, I’ll turn the program over to Kim. Once our panel has completed their discussion, we’ll go to audience Q&A, so please think about the questions you’d like to ask our esteemed guests. Audience questions will be submitted on Zoom by using the raised rand function, and we will call on you directly. With that, thank you all for joining us. Kim, the floor is yours.

 

Kimberly Hermann:  Thanks, Nate, and thanks again to everyone for joining us today. I just want to set up what we’re here to talk about, and then I’ll introduce our guests and let them have a great discussion. I’ll try to guide it, and we’ll hopefully get to lots of questions that you all may have.

 

So as you guys know, in September of 2020, the CDC issued its first nationwide eviction moratorium. Since then, the CDC renewed it several times, and most recently, they issued a new eviction moratorium that’s substantially the same as prior versions, but it’s applicability depends on COVID positivity rates in each jurisdiction and has some slight modifications. 

 

Under the CDC eviction moratorium orders, state courts are prohibited from proceeding with eviction proceedings if the renter asserts that he cannot pay his rent as a result of the pandemic. Now, private property owners are then required to allow those nonpaying renters to live rent free until the renter can pay at a later unspecified date. 

 

So following the first eviction moratorium, we saw lawsuits popping up across the country, and we’ve had a number of courts rule on both the constitutionality and the legality from a statutory perspective across the country. Both sides have raised really good points. We have a number of cases that have worked – or one case that has worked its way up to the Supreme Court twice, and a state court moratorium case that has worked its way up to the Supreme Court also. 

 

So today, hopefully, we can answer some of the questions that you all may have, that are remaining, with respect to these moratoriums. First, we’re going to hear from Luke Wake. He’s an attorney at Pacific Legal Foundation’s separations of powers practice. He litigates cases challenging agency rulemaking decisions as contrary to governing statutes and separation of powers doctrine. 

 

He was previously at NFIB, where he worked on a wide breadth of regulatory issues affecting small businesses throughout the country. He is currently representing plaintiffs in two of the CDC eviction moratorium lawsuits. One of them out of Ohio, and one of them out of Louisiana. 

 

Then, we will hear from Professor Lawrence Gostin. He is a university professor at Georgetown University, where he directs the O’Neill Institute for National and Global Health Law and is the Founding O’Neill Chair in Global Health Law. He is a Professor of Medicine at Georgetown University and Professor of Public Health at the Johns Hopkins University. In addition, to being Director of the World Health Organization Collaborating Center of National and Global Health Law. 

 

He has been at the center of public policy and law through multiple epidemics, from AIDS and SARS, to Ebola, MERS, Zika, and now he is closely working with the Biden administration and global institutions, like the World Health Organization, the World Bank, on the COVID-19 response. 

 

So now I’m going to pass it over to Luke, and he’s going to give us about 8 to 10 minutes of an introductory statement, and then we’ll hear from Professor Gostin and then open it up for a discussion between the two of them.

 

Luke Wake:  Well, thank you for having me talk today. And I appreciate the introduction, Kim. Thank you, Professor Gostin for joining us also. I wanted to briefly talk today about CDC statutory authority—or their supposed statutory authority, I should say—under the Public Service Health Act of 1944, which is the statutory authority that they’ve claimed throughout this pandemic for these moratoriums that began last September, including the most recent moratorium, which differs only slightly. 

 

As opposed to a nationwide moratorium, this only covers counties with high or substantial rates, so about 90 percent of the country, but they continue to assert the same supposed authority under that Public Service Health Act.

 

I also want to address briefly CDC’s arguments that Congress has somehow ratified the eviction moratorium with legislation that passed at the end of December last year, where it provided a one-month statutory moratorium for the month of January 2021. And then I would like to talk about the nondelegation issues here that I think help appropriately frame the issues and may give opportunity, if this actually works its way on the merits to the Supreme Court, to establish some important precedent on nondelegation doctrine. 

 

Now, I should mention though at the outset that there is, as I think Kim alluded to, a lot happening here, including in our case, in the Fifth Circuit, the Chambliss case out of Louisiana as well as the Alabama Association of Realtors case. So a lot of quick moving action right now, so this is very timely, and I’m happy to talk, as we move forward, about currently what is the status of the litigation.

 

But let’s talk first about CDC’s supposed authority here. At this point, I think everyone knows the writing is on the wall that this unlawful. Every court have reached the merits has ruled that CDC’s moratorium is unlawful, whether on Commerce Clause grounds, as in the Terkel case, or as numerous other courts have held on statutory grounds, and the Sixth Circuit most recently affirmed on the merits that CDC lacked authority on statutory grounds. The Eleventh Circuit has expressed skepticism on that point, and now it appears that we have five justices on the Supreme Court signaling that they believe CDC is exceeding its statutory authority. 

 

So what is their authority? They point to Section 264 Subsection (a) of the Public Health Services Act, and that basically says that the CDC director is authorized to make and enforce such regulations as in his judgment are necessary to prevent the spread of the disease, okay? And so that immediately sounds like a very broad conferral of authority, and in fact, the CDC and the government has argued throughout this litigation that, in fact, that does give them authority to do anything that the CDC director deems necessary and appropriate, and it, in some way contains and controls the spread of COVID-19. 

 

The second line of that provision says, “For the purposes of carrying out and enforcing such regulations, the CDC may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals/articles found to be so infected or contaminated to be sources of dangerous infection to human beings.” In other words, the second sentence gives concrete examples of the sort of things that Congress thought that it was authorizing CDC to do here. 

 

And the common denominator with all of those things is that they were conventional disease-controlled measures. But CDC, as they approach their statutory construction, has argued all along that we really need to focus myopically on the first line and don’t pay too much attention to the second line. And they say, “Well, the second line gives some examples, but they’re not exhaustive examples.” 

 

We’ve not argued that they’re exhaustive examples either, but what we have said is that in construing the open-ended conferral of authority to the CDC director to make regulation as they deem necessary, that Congress wasn’t giving a blank check. And there’s a couple of reasons for that. 

First, there is, as I think most of us should know, a background principle in play, and that is the nondelegation doctrine. Unless we want to create a very serious constitutional problem, we cannot construe an open-ended conferral of authority as truly giving authority to the CDC to do anything it likes, and the courts that have ruled on statutory grounds have consistently honed in on that. 

 

They have consistently said that the CDC’s construction raises significant questions under the nondelegation doctrine. The Sixth Circuit even went so far as to say that if the government’s construction is accepted, that would confer on the CDC director near dictatorial powers for the duration of the pandemic, including powers to shut down businesses, as we’ve seen the governors across the country doing all over this time. 

 

And, in fact, it is noteworthy that throughout the litigation, the CDC has never denied—we repeatedly pointed out—that if we accept their interpretation, that effectively gives a general police power to the agency. That is problematic. But as we’re approaching questions of statutory construction, we have intrinsic aides. We have canons of construction, logical propositions that courts apply to make sense out of statutory language that might otherwise be confounding. And we should take advantage of those tools in the toolchest and not myopically focus on one sentence. 

 

For one, for example, in the litigation, we talked about the canon ejusdem generis to saying, “Well, Congress gave a list of examples of the sort of things that they thought were appropriate for CDC to be doing under this regulatory authority. It doesn’t make sense to say that they can do anything else under the sun.” And the government has come back and said, “Well, no, we need to take a very formalistic view of that canon.” 

 

The canon’s a construction – and the Supreme Court makes clear this time and again, in the Yates case, for example. The canon’s a constructioner all about contextualizing what Congress actually intended, and so they should be employed to the extent that it helps contextualize. 

 

And so our answer to the CDC has always been, they’re being too formalistic here in the way they’re approaching the statutory construction, and their construction would render that second sentence we talked about [surplus issue 12:33]. We should generally try to avoid that, but setting aside, if you will, those basic canons of statutory construction arguments, there’s some bigger issues here that militate in favor of a narrowing construction of CDC’s supposed authority. One of which is the major questions doctrine, and that is generally speaking—and the Supreme Court has said repeatedly—that when Congress passes a law that an agency authorizes it to do some major things of significant major social economic import, we expect Congress to be exceedingly clear. 

 

And this is the old adage, that I believe Scalia said, that Congress doesn’t hide elephants in mouseholes, and that’s true. The larger the delegation of authority, the more clearly we should expect Congress to have spoken to the supposed authority here. And this authority that they’re claiming is truly extraordinary. 

And so the courts, for example, the Sixth Circuit decision, has said, “Well, Congress was not exceedingly clear,” and the same point again in all of these statutory cases. The federalism canon also comes into play. Now, I mentioned back in February, there was a decision, the Terkel case that Southeastern Legal Foundation is doing with the Texas Public Policy Foundation, and they actually got a decision that said that this moratorium, because it was invading the matter of traditional state concerns, actually violated federalism under the Commerce Clause. 

 

Now, that’s debatable, I think, under modern jurisprudence, but the interesting – but the point is that Congress has repeatedly said, under this federalism principle, that we shouldn’t construe ambiguous statutes as authorizing the federal government to meddle with matters of traditional state local concern unless Congress is clear and unequivocal. And here they haven’t been. 

 

And then, finally, there’s the canon of avoidance arguments, which goes to the nondelegation issue that I’ve been alluding to. I do want to say a couple more words about nondelegation, but briefly I do also want to address the government’s alternative statutory argument. Because I think this actually highlights the weakness of their statutory position. 

 

They have argued, since Congress passed a bill in December, as I noted at the outset, that for the month of January of 2021 allowed for a nationwide eviction. The statutory text was a little strange. It said it was extending the moratorium that CDC had enacted in September, but it only did so through January of 2021. 

 

And so the government has argued, “Well, this somehow represents a ratification of CDC’s interpretation so that they can continue to extend the moratorium even going forward.” I find this to be an extraordinarily weak argument. It highlights, if anything, that when Congress wants to pass a moratorium by statute, they know exactly how to do that. 

 

They did it with the Cares Act, and they did it in December for the month of January, and in fact, when President Biden recently acknowledged that CDC lacked statutory authority, and he called on Congress to pass legislation. Well, Congress knows how to do it. Congress chose not to, but nonetheless, the Executive Branch has moved forward with just a fourth extension. 

 

Finally, closing out my opening remarks by just saying a word about nondelegation, I highly recommend anyone who’s interested in these issues to take a look at Judge Thapar’s brilliant concurrence in the Sixth Circuit decision where he really highlights the problems when you have these federal bureaucrats making law, and that is effectively what is happening here. 

 

Even the Eleventh Circuit has noted that when pressed, the government has failed to provide any limits, really, on its authority. They could do anything to regulate anything that might involve in-person conduct, which as we see in a pandemic, concerns basically almost all human interaction, unless we’re doing an online Zoom webinar. 

 

And so I think that this case, if it does go to the Supreme Court on the merits, there’s a significant likelihood that the court will say something about nondelegation, and it will hopefully either put some teeth in the nondelegation doctrine or affirm a principle that I think is already present in our case law, and that is we apply the nondelegation doctrine more stringently. 

 

We expect more specific, more concrete standards when the scope of the delegated authority is broader, and in this case, we’re talking about authority essentially, a general police power. Well, we cannot accept such a broad open-ended authority for a federal agency to micro-manage literally any aspect of our economy and our personal lives. 

 

So I’ve said a lot. I’m going to hand things over to our colleague here, and then I’m happy to entertain dialogue going forward.

 

Kimberly Hermann:  Thank you, Luke. Professor Gostin, if you could respond to some of what Luke said and then maybe shave up for our listeners, also, some of the reasoning behind the CDC eviction moratorium. If you could maybe give a little bit more on the policy aspect of it, that might be helpful to all of our listeners. 

 

Lawrence Gostin:  Sure. Well, first of all, I thought Luke made a really brilliant, highly polished and professional case, so I thought it was really very, very well stated, rigorous. There are a few things that I wanted to comment about what he said, but why don’t I do what you’ve asked me to do, Kim, and really start with the policy. 

 

So on Twitter, I’ve been saying a lot about the eviction moratorium right from the beginning, and so my take is this: first as a policy matter and as a public health matter, I think it’s as – CDC is clearly justified as it can be. The people who are in a pandemic and have shelter, who would be pushed onto the streets, are much more likely to transmit dangerous infections when they’re either homeless or have housing vulnerabilities. 

 

They do that in many ways. If they’re homeless, they might be in crowded congregate settings, like shelters. They may go to a wider family where lots of people are crowded in together, which is another option, or they just might get on a bus or a train and go to another state. And so I find that the CDC’s eviction moratorium compelling on both public health grounds and also on humanitarian grounds. 

 

Public health, that I’ve explained, I do think that there’s an amplified risk of transmission of infectious disease if you make a person’s housing unstable, and particularly, the whole family, and there are a lot of kids involved. And then, secondly, I do believe that this a humanitarian importance and well within the compassion and the strength of the United States of America to help people when they’re at their most vulnerable in a once-in-a-lifetime health crisis, who thought that they had stable housing, and they couldn’t afford, because of the pandemic, to maintain that housing. 

 

So I’ve always thought that the policy justifications for CDC’s moratorium and that President Biden has emphasized, and even goes back to President Trump, seems highly compelling to me. When the CDC first issued its moratorium, what it did is it provided a very thorough scientifically grounded justification, almost like a Brandeis brief, where they calculated the likelihood that there would be interstate spread of SARS-CoV-2 as a result of people being tossed out of their homes. 

 

And at the time, I said that I felt that CDC was acting at the edge of its statutory and constitutional authority, but I was willing to accept it given all of the evidence CDC had provided. As Luke said, it’s now been through the courts, including the Supreme Court, and Judge Kavanaugh made extraordinarily clear that there’s a fifth vote in the Supreme Court for striking down the moratorium. 

 

I’ve then been tweeting and saying that President Biden, I understand why he is pushing for the moratorium, but that he should swallow hard and follow the rule of law, and that the writing is on the wall at the Supreme Court. 

 

What I worry about is that I’ve worked with CDC for over 30 years, and with successive presidents on public health, and I worry that they’re inviting an adverse ruling from the Supreme Court, which could have rebound to the detriment of CDC and the federal government, going forward, when it has to act with a certain amount of nimbleness and flexibility. It will face this. And since when it last was before the Supreme Court, it upheld the moratorium, knowing that it was going to be expiring soon. 

 

They should’ve swallowed hard and accepted that and not reissued it. I think it was an error for the White House and the CDC to do that, and I’ve said quite publicly, even though I’m an enormously strong supporter of the eviction moratorium. And if I were on the Supreme Court, I probably would vote to accept it and to validate it. Although, I think it is a very close call. 

 

Okay. So why is it a close call? Luke makes the case, and I think strongly speaking that really in nondelegation, you want to be as explicit as possible about the powers that you’re delegating, particularly, to an agency that does have considerable control over our lives. There’s no question about that. 

 

But the problem with that argument is that we really don’t want – as a society, whether you’re a freedom-loving federalist society person or a progressive, you want your public health agencies, and particularly your national agency, to have flexibility and a nimble response to any health emergency. 

 

Because, frankly, neither Congress nor anyone else knows what the next emergency’s going to be and to try to cabin it. It could be a mosquito; it could be an Ebola; it could be a bloodborne disease or a sexually transmitted disease; it could be a coronavirus, an Ebola virus, influenza virus. You really don’t want to have to explicitly list all the things CDC can do. You really do need that kind of national public health leadership. 

Now, it’s absolutely true that under our federalist society, CDC doesn’t have a general police power. It shouldn’t. State and local governments do, but it does need to coordinate and try to guide a national and uniform approach. We’ve seen this time and time again with COVID-19. You’d have to be blind not to see the gaps in federal oversight and to consistency, in relation to this pandemic. 

 

So I think it’s extraordinarily unwise to try to keep challenging that, but it’s just as unwise for the CDC not to see the writing on the wall and go to the Supreme Court, where it’s absolutely almost certain to get an adverse ruling. 

 

It reminds when Washington D.C. attorney general, which he now says is his worse mistake—but I could’ve told him that on day one, and did—to appeal a ruling on the Second Amendment to the Supreme Court, at that time, was just tempting fate. He did it. He got exactly what he didn’t want, and this is the same thing here. I think we really do want to protect our public health agency. CDC is the shining star of our federal agencies. We need it more now than ever. I realize it hasn’t performed well always in this pandemic, but it is a global envy of the world, and we don’t want to kneecap it. 

 

So there’s fault to go around with everyone, as I’ve said. I’ll just repeat it one last time, if I were President Biden and Rochelle Walensky, I would swallow hard, say that this is an awful outcome from a humanitarian and public health perspective, but they’re on the edge of their constitutional and statutory authority. The Supreme Court has told them as much that there’s five votes. You can’t get much clearer than that. 

 

And I do think that in the face of all of that, the White House, which is really driving this, I think, more than the CDC, the White House needs to respect the rule of law. We would expect the same thing if it was a Republican or a Trump administration, and we have to hold the Biden administration to the same standard. I like all the things that President Biden has done, but you have to be clear and fair-minded, and you always have to be somebody who champions the Constitution and the rule of law. 

 

Kimberly Hermann:  Very well said. And I think that especially with your last statements there, that’s something that everyone that’s tuning in right now agrees with, and across the board, everyone can agree on that. 

 

I want to ask you both before we let you guys respond, what are your thoughts on some of the state moratoriums, right? I know we’re here to talk about the CDC eviction moratorium, but you mentioned there was a lot of talk about CDC’s powers both constitutional, and Luke did mention the Terkel case, which I am counsel on with TTPF on that case. 

 

But with the New York case specifically, right, New York had the state moratorium, and it went up to the Supreme Court, and certain parts of it were enjoined, but very precise minimal parts about people putting forth declarations that they could not actually pay their rent. And so what are your thoughts on states doing this from a constitutional and legal perspective?

Lawrence Gostin:  Well, I have some thoughts on it. I’d like to hear Luke first, and then I’ll offer some opinions about what the Supreme Court did.

 

Luke Wake:  Yeah. Well, first of all, I always find when we’re having these conversations, I appreciate where we have common ground, and so I appreciate that we recognize that we ought be abiding by the rule of law. And I also think it’s important to recognize that people could have legitimate policy disagreements on these issues and still recognize that we still have to abide by the rule of law. Because, as my point all along has been those disagreements should be hammered out in the legislative space by Congress, by the state legislature, not coming from the Executive Branch.

 

And you did, at the state level, see gubernatorial executive orders coming from governors who, through the course of this pandemic, have assumed – literally, in California, the Governor Newsom has “all police powers of the state.” He literally can do anything that the legislature itself could do, and a lot of other emergency management acts have given the governors more enumerative powers, and nonetheless, they’ve stretched that to mean what we can – in practice, do whatever we want. And so we saw things like eviction moratoria coming up. 

 

Now, I would’ve, in those cases, said there’s probably – unless there was very explicit authority for that, that should have been coming from a legislative body, generally speaking. One could debate about whether it’s good policy. I can appreciate the humanitarian arguments there. My response would be that we shouldn’t be expecting the landlords alone to be shouldering those public burdens. 

 

And so if we think these are important priorities, that we want to make sure that renters are not displaced during a pandemic, well, then we should be providing, as a society, assistance directly to those people. And most importantly, those discussions should be taking place again in those legislative chambers. 

 

But there are some constitutional issues that are presented with the state and local moratoria as well—not the statutory issues that we’ve been talking about with CDC but questions under the Contracts Clause as well as the Takings Clause. Now, I’m not going to get into detail about the Contracts Clause argument, but PLF has litigated – we’ve got a case against Seattle and Washington states eviction moratorium as violating both the Contracts Clause and the Takings Clause. 

 

I think the Takings Clause, in particular, though, is something that we’re going to have to explore in further litigation, especially, once we see these moratorium ending because it remains to be seen to what extent the government actually makes these property owners whole. But it is pretty firmly established in case law that when the government physically appropriates or commandeers someone’s property that that should be viewed as a taking, and so that would be, I think, my legal answer to the state and local issue.

 

Lawrence Gostin:  And what about what the – the Supreme Court didn’t hold that, though, did they?

 

Luke Wake:  No. Kim is referring to this – actually, it was a due process case concerning the New York eviction moratorium. So, no, that wasn’t referring to – it wasn’t raising takings issues or anything like that. But the interesting thing there was that the court had said they were going to grant a motion for injunction pending appeal in that case, and I find that interesting, particularly, because we’re representing these landlords down in Louisiana. 

 

And we have, right now, pending before the Fifth Circuit, just filed last week, a motion for injunction pending appeal given all of the recent developments, and that I think quite clearly signals that, at least, the Supreme Court doesn’t really think that the equities of this issue justify a suspension, and the ordinary rules of law, to allow problematic provisions of an eviction moratorium to remain in place. But I’m not sure what else to glean from that decision, but perhaps you have some more thoughts, Professor.

 

Lawrence Gostin:  No, I don’t. I do think that states have the authority to issue an eviction moratorium. I’m not at all as troubled by the constitutional and statutory issues that we talked about with the CDC. Remember, throughout the pandemic, as we’ve been talking about, states have locked down entire businesses, and if they can do that, then I think they can impose an eviction moratorium. I actually was really incensed by what the Supreme Court did, but not on the broader issue about whether or not a state has the power to do it. I just took it for granted that the Supreme Court was not saying that states don’t have the power. 

 

But when they said that, when they struck down the idea that you can’t just make a declaration, and that you have to go to court, and I just thought – I’m sorry. I’m not even speaking like a lawyer. I’m speaking like a granddad. That, to me, was the height of arrogance. Imagine these Supreme Court justices thinking, “Okay. Yes, I’ve got a family. I’ve got a bunch of kids. I’m about to be thrown out of my home. But I have to go to court and give evidence to show that it was the pandemic that made me not pay the rent.”

 

I just thought that that was just so tone-deaf and so insensitive that I was actually outraged by it. Because, sometimes, you have these justices and judges that just don’t have any idea what the ordinary woman and man goes through when they’re poor, and they’re vulnerable, and they’re scared, and they’ve thought they had a home, and then they don’t. If you’re a Conservative, you’re supposed to have a heart. 

 

And I just think in America, we’ve – both the left and the right of America sometimes outrage me because they’re just so dogmatic in their response that they forget we’re human beings, and you have to put yourself in the position of another human being, and I just found the Supreme Court just completely tone-deaf to that. 

 

Luke Wake:  If I could respond, Kim.

 

Kimberly Hermann:  Yeah. Yeah. Please, Luke, go ahead, and then I’ve got a follow-up question to both of your comments, and then we’ll open it up. So if you guys have questions and want to start raising your hands, after we have this little exchange, we’ll go ahead and start getting to them. 

 

Luke Wake:  No. His point is well taken. And I think we should be compassionate as human beings, and so there’s that. But again, we have the rule of law. But I did want to clarify, I wasn’t necessarily suggesting that the states don’t have the ability to impose an eviction moratorium. They do as a matter of their police powers, but it’s the legislative body that holds the legislative police power to just affirmatively make law.

 

But when I raised the takings issue, again, that’s not to say that they can’t do it. It’s just that the Takings Clause imposes a condition on the exercise of the police power so that if we as a society decide that we’re going to do this, well, then we have to assume that public responsibility in the aggregate, and so the tax payors would have to assume that responsibility as opposed to making just landlords shoulder those public burdens.

 

Kimberly Hermann:  One question I have for both of you is from a policy perspective, right? We’re talking about the legalities. We have the Terkel opinion in which Judge Barker came out and said that neither Congress nor the CDC have the constitutional commerce power to stop state court proceedings with respect to evictions. We’ve got the Chambliss case that is working its way through the Fifth Circuit also. We’ve got the Tiger Lily case with the Sixth Circuit statutory ruling and constitutional rulings there, and several others, so we’ve got a lot of case law now that’s been building up.

 

And one thing that we’re hearing a lot, on one side, is as Professor Gostin pointed out, you’re putting people out on the streets when you evict people. But the flip coin of that is also that if landlords are having to house people without getting paid, they’re eventually going to go into foreclosure, and there have been a number of stories on that. And it’s this really awful, really, merger of where those two interests come into play because nobody wants anyone out on the streets, and nobody wants people to have to foreclose on homes that they own. 

 

What could be some other potential solutions, right, to this overall problem that are constitutional and don’t actually affect any state court proceedings? Do you guys have any thoughts on that before we kick it open? And again, if you guys just – if anyone has any questions, you guys can just raise your hand or type it into the chat, and then we’ll be calling on you and unmute you at that time.

 

Lawrence Gostin:  The obvious answer is just use the spending power, which Congress did do with the COVID emergency legislation. It’s just that the money never really got into the hands of tenants and landlords in a timely manner, but that’s the simplest solution that’s clearly constitutional.

 

Luke Wake:  I agree with that. Actually, that would’ve been the simple solution from the outset. It’s unclear to me why we didn’t just do that as opposed to impose the eviction moratorium. But Kim, you raised a good point about the unintended consequences as well. I’m not sure if you were intending to raise that point.

 

To the extent that we’re having these eviction moratorium in place, that has unintended consequences on tenants, landlords because they’re concerned about the impact to them and their ability to bring in revenue, of raised credit; they’re scrutinizing applicants’ credit scores more diligently; they’re requiring higher deposits. 

 

And presumably, some folks are exiting the rental market to sell when prices are very high in the market, so there’s probably issues with affecting affordability, going forward. And yet that’s another thing that CDC, the way they proceeded without even allowing for opportunity for notice and comment, really didn’t stop to think about those sort of issues. 

 

Kimberly Hermann:  Thanks for both of those. I just think it’s important that we also touch on those points, right, because we know that this is a real problem, and sometimes, it’s hard to find solutions, and that’s part of what we’ve been dealing with over the last year and a half now, almost, with a lot of the repercussions that have come out of COVID. We’ve got a question from Scott Carrick, if he could be unmuted. Thanks. Scott, I think you’re unmuted if you want to go ahead.

 

Scott Carrick (sp):  I’m so sorry. It was an accident. I didn’t mean to press that. 

 

Kimberly Hermann:  Oh. You’re good.

 

Scott Carrick:  No question.

 

Kimberly Hermann:  Okay. Let me see if there’s any other questions. Okay. It doesn’t look like we have – let’s see. Oh, we’ve got one question that came in for Luke. It says, “I’m sympathetic to landlords here, but what is your response to Professor Gostin’s point that shutting down businesses is as much of a taking as the moratorium?” 

 

Luke Wake:  So a great question, and first of all, I think under existing regulatory takings jurisprudence, the idea that shutting down business during the pandemic – there were people who brought that claim, and they didn’t succeed, and I think for good reason. It is clear it is within the police power of the state to shut down businesses. No one’s disputing that, and a lot of courts have said, “Well, it’s also within the delegated authority to the governor under the emergency management acts to do whatever they think is appropriate.”

 

My view, as I’ve argued this in a lawsuit against Governor Newsom here in California, as well as we’ve got a case against Governor Cooper in North Carolina, is that when you have such an open-ended conferral of really lawmaking authority to the Executive Branch – again, in California, they’ve given all of the police power to the state. And we are representing a business that was shut down. 

 

It’s an indoor minigolf facility, and they were shut down for over a year. Every other business in California was – you could go into marijuana dispensaries. You can go to Target. You can go all over the place with masks and social distancing, and they were closed out all that time, and so our argument in that lawsuit has been that that violated – to give that open-ended authority to the governor violates the nondelegation doctrine, and we’re still working on that case. 

 

But the Professor makes a good point, and one that the governor has raised in this lawsuit—I’m referring to Ghost Golf v. Newsom—Pacific Legal Foundation is doing, and the government keeps saying, “Well, we have to, just as a matter of necessity, give the governor this sort of a blank check.” And the problem is maybe there’s some way to that argument, the very outset of the pandemic, when – but when we’re six months in, and you’ve got a governor giving us a new color code regime that looks very much like a complex statute that we would expect coming from the legislature, six months in, there’s been plenty of time at that point for the legislature to respond. 

 

And Judge Thapar, in that great concurrence I mentioned in the Tiger Lily case, concerning CDC’s moratorium, he made the point that people raised concerns about whether the legislature can respond quickly, but we saw with the Cares Act that, in fact, Congress can move quickly when it’s sufficiently motivated. That was passed very quickly in March of last year.

 

Kimberly Hermann:  Okay. Professor, did you want to respond to that?

 

Lawrence Gostin:  No. It’s okay. No.

 

Kimberly Hermann:  Okay. We’ve got another question that came in here from Rob [Hadigy 45:02], and it says, “What’s the best argument each of you would make that the CDC order is constitutional, specifically, as to why you’d say the trial court opinion in Terkel is wrong?” So I guess the question really is, in the Terkel opinion, Judge Barker said that, as I mentioned, that neither Congress nor the CDC had the constitutional authority to do this. What are your thoughts on that, and if you think you got it wrong, why?

 

Lawrence Gostin:  I know you said, Kim, that it was a great judgment. I find it rubbish. I don’t see any merit to that at all. Of course, Congress has the power to regulate interstate commerce, and just as you could require masks or vaccines on an interstate or international carrier, anything that’s clearly going to spread a dangerous infectious disease from one state to another or from one country to another, I think Congress absolutely has the power under the Constitution to regulate. That goes back a long way, and I just think there is a lot of dogma in the judiciary these days that comes from whatever personal perspective that the judge may have.

 

So the real question, to me, has always been, is it a credible argument that if the CDC were to reach all the way into a state and affect a landlord and a tenant, is there enough evidence to really justify that in terms of the interstate or international spread of a disease? I always, as I said at the beginning, you know I wear my heart on my sleeve, and I do believe that we shouldn’t be throwing people out. And I’ve some sympathy for landlords, but really the greater vulnerability here are people, whole families, that are going to be thrown out on the street, and we shouldn’t minimize that by talking about property rights. I’m sorry I know I’m at The Federalist Society. 

 

So I do think it was the edge. I thought CDC made a credible case, but it’s absolutely the edge of their authority. They’ve never done anything like this before, that I’m aware of, and it just stretches this thing. I think, yes, probably, there will be significant transmission of SARS-CoV-2 within the state, and there probably will be a little bit spilling over to other states, but that’s not what’s really going on here. It’s not really a regulation of interstate commerce and the interstate spread of infectious disease. 

 

So on the constitutional commerce power, I just think to the extent that a judge or anyone else says that Congress doesn’t have the power to do it is just a silly argument. But on the actual applying the facts, so that standard, in this case, I do think is a stretch, and I’m close to the Biden administration. I like them. I publicly said that I think that they need to swallow hard and think about what they’re doing.

 

Kimberly Hermann:  Luke, do you have thoughts on it?

 

Luke Wake:  Yeah. Just briefly. Rob, great question. Certainly, as a matter of originalism, I agree. And I think there’s a strong case as a matter of originalism. It’s hard to think of something more localized than the landlord/tenant relationship, where that piece of property is not moving across state lines, but I also appreciate some of the points the Professor made. 

 

It is difficult under modern jurisprudence, right, with the Wickard and Raich, given that attenuated logic that they have there. It’s very difficult to find anything that doesn’t satisfy the Commerce Clause, other than guns in school and requiring people to buy health insurance. 

 

So I would love to see some positive precedent chipping away at the federal powers, and so I appreciate you guys advancing that. But it also underscores, as I noted initially, that there is a very significant – whether or not it actually violates the Commerce Clause, it underscores that there’s a very significant question of federalism, and so all the more reason if Cognress was going to legislate here that they needed to speak with specificity.

 

Kimberly Hermann:  Thanks. It looks like we have a hand raised. We’ve got a number of questions that have come in the chat, but let me take the hand that’s raised. Tom [Kaminek 50:01], if you could ask your question? Tom, are you there? Okay. If you can get – you might need to unmute yourself. They’ve allowed—

 

Lawrence Gostin:  No. He said it was an accidental click.

 

Kimberly Hermann:  Oh. We have another one. I didn’t hear that. Okay. We’ve got a couple of hand raised, and I think a couple of people that were in the chat for that. We’ve got a question from John [Vecchioni 50:36]. He said, “What do the panelists think about the Supreme Court” – oh, so excuse me. “What do the panelists think the Supreme Court will do about lifting the stay on Judge Frederick’s injunction and how soon?”

 

Luke Wake:  They refiled the notion to vacate the stay in the district court, and then the district court said, “We were bound by the D.C. Circuit decision.” The D.C. Circuit said, “We’re going to keep it in place,” possibly, anyways, because they were bound by the prior panel decision, and so now they’ve asked the Supreme Court to do the same thing. 

 

I don’t have a crystal ball, but we know that there are five justices who think that CDC lacks statutory authority, and I thought Kavanaugh was pretty clear in drawing a line in the sand, said, “Though shall not do this past July 31st.” So I would think he’s, at this point, going to say, “Enough is enough. We can’t go to sleep and pretend that the Constitution doesn’t exist.” But maybe, the Professor has a crystal ball. I don’t.

 

Lawrence Gostin:  No. I think you’re exactly right. Kavanaugh was just talking to President Biden and saying, “You can’t do this.” So it’s clear that there are five votes on the Supreme Court, and that’s why I don’t agree with the Supreme Court. Although, I have some sympathy. As I say, it is on the edge of their authority.

 

But the Supreme Court has pretty much spoken. You have to abide by it. That’s what we would insist on any administration, and administrations should not go forward with an action if there are really significant doubts about its lawfulness, and having a fifth vote of the Supreme Court, as much as shout that out, seems, to me, you just need to respect it. You respectfully disagree, as I do, but you have to respect it. 

 

Kimberly Hermann:  We’ve got a couple more questions that have come in here. I’ll try to get a few of them before we hit the hour so we can respect everyone’s time to wrap this up around 2:00. But a question came in from Jason [Block 52:56]. He said, “Perhaps I missed it. Have there been any challenges seeking compensation based on taking or interference with contract?” I believe there may have been some state cases that Luke referenced. I’m not sure at the federal level, but Luke, do you want to take that one first?

 

Luke Wake:  I believe I saw that there is something that’s been filed in the court of federal claims, if I’m not mistaken, but I think you’re going to see more of those, and Pacific Legal foundation is actively looking to bring some of those cases.

 

Kimberly Hermann:  Professor Gostin, do you have any thoughts on the particular interference with contract claim or a federal taking claim for that? We touched on it briefly in the state context, but I want to give you a chance to respond if you have any thoughts on that.

Lawrence Gostin:  No. I don’t know about the cases. Luke is much more up to date on what the cases are in the courts. I’m someone who believes that we really shouldn’t go too far in the regulatory takings area, that is we should not prevent public health and other authorities from having a well-regulated society. 

 

And I think a lot of libertarians believe that America is – that regulation is an evil. But if you go back to our founding era, it’s always been thought that we need to have a well-regulated society for the common good, and the common public health, and public safety, and sanitation. 

 

And so I think we act at our peril in all of these areas that we’re talking about when we’re seeking to tie the hands of our officials, particularly, our local state public health officials, which we’re doing as well, not just the federal government. I know that that’s the mantra and the doctrine of some people in the United States, but I just don’t agree with it. 

 

And I think that freedom is important, but you can’t have freedom unless you have some security and some safety, and you can’t predict what the future is going to be. We can act very zealously now to make it harder to act in an emergency, but I don’t know that you really want to do that. But I can’t convince people otherwise, but that’s my view.

 

Kimberly Hermann:  One last question, and there have been a – I’m going to reword it because we’ve gotten it from about five – about five different people have sent in something similar. The question really is, what should the limit of CDC be, right? So, for example, in the Terkel case, they came in and said – I believe Judge Barker specifically asked them, “What are the limits, right? If it wasn’t for COVID, could you be doing this?” And the DOJ’s response was “Yes. If fairness required it, we could be doing this.”

 

Now, that was said in an oral argument. We haven’t seen that in a briefing, so it could’ve been just a statement by the DOJ attorney. But the question has come in in numerous ways, “What should the extent of that power be? Where should it stop?”

 

Lawrence Gostin:  Yeah. I do agree with the idea that you just can’t give CDC general police powers. I think Luke is right on that, and it’s not part of our constitutional history. States and localities absolutely have the primary responsibility. Just to give you an example, one of the things that outrages me are these state laws that ban mask and vaccine mandates. There are about 11 of them. And I’ve said that this – it’s ridiculous to actually prevent local authorities and your businesses from doing something that is widely regarded in the scientific community as safe and necessary.

 

But I’ve always said the states can do that. If a state legislature wants to do it, it is within its authority. It may be unwise, but it is within their authority. And so the way I would read the Public Health Service Act, and particularly, those two clauses that Luke referred to, and I was thinking about it, I think both sides are making a little bit of an error here. I think the idea that you primarily focus on the second clause is not right because there’s no way for Congress to actually imagine all of the areas, but also CDC can’t ignore the second clause. 

And so you have to have a rule of reason. You just have to put on your commonsense hat, and the commonsense hat, to me, tells me, is CDC comfortably making the claim—comfortably making the claim—that what it’s seeking to do has a real and tangible effect on the interstate or international spread of an infectious disease or is it just on a fishing expedition? 

 

That’s what I would I look at, and that’s why I liked when CDC initially put out the eviction order, that it took seriously that interstate spread. It provided a very good Brandeis brief. It was kind of convincing to me, but not overwhelmingly convincing, but somewhat convincing. But the courts didn’t like it, and I can understand why. 

 

So I think that’s – so you just have to use a rule of reason: is CDC comfortably making an assertion that the power that they’re exercising is necessary to prevent the interstate or international spread of a dangerous infectious disease? If it is, then I’m fine with it. If it’s not, I’m not. 

 

Kimberly Hermann:  Luke, I give you a minute or two to respond to that, and I’m going to kick it back to Nate to close this out.

 

Luke Wake:  Yeah. Just a couple of thoughts on that. With regard to the second line, our point all along has been that, well, you can’t ignore the second line, but you have to read the first and the second line together to contextualize the otherwise just extraordinary grant of authority that the CDC was claiming. 

 

We never suggested that the second line provides an exhaustive list of the only things CDC can do. It doesn’t say that CDC can regulate the sale of turtles that might have salmonella, but that’s a perfectly reasonable construction of it. It’s consistent with the sort of things that CDC is expressly authorized to do in that second line.

 

Our point was simply that contextualizing the first and the second line together, we should not interpret that first line as just giving a total blank check. To have a rule of law, there has to be an objective standard, and I get this judges sometimes will come to different conclusions and construing what that standard is, but it can’t just be, “Do I think it’s reasonable?” 

 

But to the extent that the question is, is this a reasonable construction, I think the courts have demonstrably spoken that it’s not applying those canons of construction, and the federalism canon, and the major questions doctrine, and all that. The courts have said that it’s not. But even setting that aside, we haven’t even touched on this in this conversation, but there’s a question about whether or not they should get Chevron deference. 

 

The government didn’t expressly ask for Chevron deference in any of the cases that I’ve been involved with. The Sixth Circuit said, “Well, we’re not going to even entertain that,” because they didn’t ask for it, so they’ve waived it. There’s a significant question about whether you could even waive Chevron deference. 

 

In the Tiger Lily case, we argued that – they didn’t deserve deference to the extent that they should ask for it. Pardon me, I had a Teams call come in, and it was distracting me. But the court there said the plain meaning of the statute, even considering Chevron, we’re not going to apply it. So the court even went through that Chevron analysis there and said they didn’t ask for it, but they wouldn’t get it even if they wanted it. 

 

So it is interesting, and it’s frankly just remarkable that the president would extend this moratorium after admitting it’s unconstitutional, after saying, “I’m going to do this just because.” I’m paraphrasing only slightly that, “Well, we can buy time because this litigation’s going to take a while to play out.” It was just a very expedient realpolitik calculus, and it’s a smack in the face of the rule of law.

 

Kimberly Hermann:  Well, thank you, Luke, and thank you, Professor Gostin. I think Nate has some closing remarks for us, but we appreciate all of you tuning in, and Nate, it’s all yours.

 

Nathan Kaczmarek:  Well, we’re over time, so I will just say thank you to Kim, Luke, and Lawrence for the marvelous conversation this afternoon. We really hope to have each of you again soon. Audience feedback is welcome at RTP by email at [email protected]. I hope all of you have a great day.

 

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Conclusion:  On behalf of The Federalist Society’s Regulatory Transparency Project, thanks for tuning in to the Fourth Branch podcast. To catch every new episode when it’s released, you can subscribe on Apple Podcasts, Google Play, and Spreaker. For the latest from RTP, please visit our website at www.regproject.org.

 

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This has been a FedSoc audio production.

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