Nondelegation Limits on Covid Emergency Powers: Lessons from the Eviction Moratorium and Title 42 Cases
The Covid-19 pandemic that reached the United States in early 2020 has led to numerous exercises of sometimes unprecedented emergency powers. They, in turn, have resulted in extensive litigation over whether the emergency powers used violated constitutional rights and structural limits on government power. Two recent legal battles over Covid emergency measures highlight the dangers of excessive delegation of emergency power to executive branch agencies: the recently concluded litigation over the Centers for Disease Control nationwide eviction moratorium, and the still-ongoing legal battle over that same agency’s Title 42 “public health” expulsions of immigrants.
While superficially different, the two legal battles actually raise very similar issues. Both involve exercises of power by the exact same federal agency, utilizing authority it claims was delegated to it under consecutive provisions of the Public Health Service Act of 1944. Both measures were first adopted under the Trump Administration, and later continued—with some modifications—under the Biden Administration. The bipartisan nature of the policies suggests that the problems they raise are not limited to one administration, nor to one side of the political spectrum.
Both policies were open to serious challenge under the constitutional nondelegation doctrine, and under the related “major question” doctrine. The latter creates a presumption against assertions that Congress has delegated vast discretionary authority to the executive branch, thereby requiring Congress to “speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’” These vulnerabilities eventually led to the judicial invalidation of the eviction moratorium, and may have contributed to the DC Circuit’s partial invalidation of the Title 42 expulsions.
Finally, it is notable that both policies did little to stop the spread of the disease and were enacted by the executive despite skepticism from public health experts. Both the Biden and Trump administrations had political incentives to keep these policies in place, despite their legal flaws and highly questionable public health benefits. Despite its vaunted expertise, the CDC went along with these policies. This fact highlights the reality that supposedly nonpolitical expert agencies sometimes cannot be depended-on to resist political pressure and strengthens the case for strong judicial review of emergency measures.
The parallels between the eviction moratorium and Title 42 cases have so far largely been ignored in the public and legal debates over them. This may be because of the differing ideological valence of the two cases. The litigation against the eviction moratoria was led by conservative and libertarian public interest groups, such as the New Civil Liberties Alliance, the Pacific Legal Foundation, and the Texas Public Policy Foundation, all of which represented plaintiffs in some of the many cases challenging the moratorium. Other lawsuits against the moratorium were brought by groups representing landlords, including the Alabama Association of Realtors, whose case ultimately reached the Supreme Court. By contrast, the lawsuit challenging the Title 42 expulsions was handled by the left-leaning American Civil Liberties Union. This ideological division is not surprising, but it may well have helped obscure the parallels between the cases.
Part I of this article provides an overview of the eviction moratorium and Title 42 policies, and the resulting litigation. This history helps illustrate the striking parallels between them.
In Part II, I explain why both policies violate the constitutional nondelegation principles. Part III shows how, for very similar reasons, both also run afoul of the major question doctrine.
Finally, Part IV outlines some lessons that can be gleaned from these cases. Among other things, they strengthen the case for nondeferential judicial review of emergency powers and delegations to supposedly expert executive agencies. They also highlight the need for greater cross-ideological cooperation and dialogue on these issues. Nondelegation and major question limits on emergency powers will be on firmer ground if they enjoy cross-ideological support and cannot be stigmatized as mere partisan tools of one side of the political spectrum.
Both the Title 42 and eviction moratorium litigation touched on issues other than nondelegation and the major question doctrine, including statutory interpretation issues specific to the statutes in question, claims that the Title 42 expulsions violated US obligations under international law, and claims that the CDC eviction moratorium exceeded the scope of federal power under the Commerce Clause. In this Article, I consider these matters only in so far as needed to address the nondelegation and major questions issues that are my principal focus.
