When a Health Agency Decided It Could Freeze Every Eviction in America

Let me read you a list. Inspection. Fumigation. Disinfection. Sanitation. Pest extermination. The destruction of infected animals. Now, one more item, and I want you to guess which: the nationwide suspension of residential eviction.

If you had to pick the odd one out, you did not need a law degree. And yet for a stretch of 2020 and 2021, the Centers for Disease Control and Prevention took the position that the first list gave it the authority to do the last thing, for every rental property in the country. It is one of the great leaps in the history of administrative interpretation, and the best part is that the agency kept a straight face.

This post is about law and power, not medicine. I will not argue about the disease, the treatments or the wisdom of any health measure. The question is who has the authority to do what, and what the Supreme Court said when the answer was a 1944 statute about pests.

The claim

My thesis is that the CDC's eviction moratorium was unlawful, that the Supreme Court was right to say so, and that the episode is a clean illustration of a principle conservatives have argued for generations: when an agency finds enormous power in a few old words, the first thing a court should ask is whether Congress really handed it over.

I will make the case in five numbered steps.

1. The statute the CDC relied on is narrow in its text.
2. The agency's use of it was without precedent.
3. The Supreme Court's decision in Alabama Association of Realtors v. HHS (2021) held that the agency had exceeded its authority.
4. The related rulings in NFIB v. OSHA and Biden v. Missouri (2022) show that the Court was applying a rule, not a mood.
5. The major questions doctrine, as stated in West Virginia v. EPA (2022), is the name of that rule, and it protects the separation of powers.

Step one: what the statute says

The authority the CDC cited was Section 361 of the Public Health Service Act, enacted in 1944 and codified at 42 U.S.C. section 264. The statute authorizes the Surgeon General, with the approval of the Secretary, to make and enforce regulations that in his judgment are necessary to prevent the introduction, transmission or spread of communicable diseases from foreign countries into the states, or from one state to another.

Then it gives examples. The statute says that for those purposes the official may provide for "inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary."

Now, here is a principle of statutory reading that is older than anyone in the building. When a list of specific items is followed by a general phrase, such as "and other measures," the general phrase is read in light of the list. Lawyers call it ejusdem generis, a Latin way of saying that a catch-all catches things of the same kind. Fumigating a ship and disinfecting a warehouse are measures applied to the thing that carries the disease. Telling a landlord he may not evict a tenant is a measure applied to a contract between two Americans, and the connection to disease runs through a long chain: if tenants are evicted, they may move in with others, and if they do, they may spread illness.

I will grant that the chain is not absurd. It is a chain. But notice how many links there are between the statute's examples and the rule the CDC wrote. A power that long can reach almost anything.

Step two: the order

On September 4, 2020, the CDC issued an order entitled, in substance, a temporary halt in residential evictions to prevent the further spread of the coronavirus. The order applied nationwide. It barred landlords from evicting covered tenants for nonpayment of rent, subject to conditions the tenant had to certify, and it carried criminal penalties for violation.

Think about what that means. Not a state's legislature, not Congress, not even a department with housing in its portfolio, but a public-health agency prohibited the enforcement of rental contracts across fifty states, and attached penalties. It did so under a statute that had never before been used for anything of the kind.

Here is the chronology, because it matters.

• The order was set to expire at the end of 2020. Congress, in a late-2020 appropriations and relief package, extended it through January 31, 2021.
• The CDC then extended it by its own action, through March 31, then June 30, then July 31, 2021.
• The order expired on July 31, and three days later the CDC reimposed it, narrowed slightly in geographic scope to counties with substantial or high levels of transmission.

Notice that last step. By the Supreme Court's own later description, the new moratorium was "indistinguishable from the old" apart from that narrowing. That is, to put it gently, a notable view of a court's earlier signals.

I want to stress what makes this a separation-of-powers story and not a housing story. Congress knew how to do this. In the CARES Act of March 2020, Congress itself imposed a temporary moratorium on evictions for certain properties with federal financing. It was limited in time, it was specific in scope, and it came from the branch that the Constitution gives the lawmaking power. When Congress acts, nobody has to argue about whether it had the authority. The CDC's order was different in kind: it reached the whole market, and it rested on a statute about pests.

Step three: the court

The order was challenged in court, and the litigation moved quickly. In May 2021, a federal district judge in Washington, Dabney Friedrich, ruled that the CDC had exceeded its statutory authority, though she stayed her own ruling pending appeal. The Supreme Court was then asked to lift the stay.

In June 2021, the Court declined to do so, by a vote of five to four. The reason is worth understanding, because it shows how close the question looked at that point. Justice Brett Kavanaugh, who provided the fifth vote, wrote separately. He said that he agreed with the District Court that the CDC's moratorium exceeded its statutory authority. But because the CDC planned to end the moratorium in a few weeks, and the time would allow a more orderly distribution of congressionally appropriated rental-assistance funds, he concluded that the balance of equities favored leaving the stay in place. Four other justices, Thomas, Alito, Gorsuch and Barrett, would have vacated the stay.

The CDC then issued the new order. And on August 26, 2021, in Alabama Association of Realtors v. HHS, the Court, in an unsigned opinion, vacated the stay and let the district court's ruling stand. Three justices dissented.

The opinion contains two passages that I think belong in every civics classroom. First: "It is indisputable that the public has a strong interest in combating the spread of the COVID-19 Delta variant. But our system does not permit agencies to act unlawfully even in pursuit of desirable ends." Second, on the Government's reading of the statute, that it "would give the CDC a breathtaking amount of authority."

Let me restate the first quotation, because it is the heart of the matter. A good goal does not supply a legal authority. The most important sentences in administrative law are often the most obvious ones, and that one reads like something a founder could have written in the margin of the Constitution.

The Court also observed that at least 80 percent of the country, including between 6 and 17 million tenants at risk of eviction, fell within the moratorium, that nearly $50 billion in emergency rental assistance was a reasonable proxy for its economic impact, and that it intruded into an area, the landlord-tenant relationship, that has traditionally belonged to the states. It added that Congress must enact exceedingly clear language if it wishes to significantly alter the balance between federal and state power and the power of the Government over private property. The agency had not shown that kind of language, and the old statute did not provide it.

Step four: the related rulings

Five months later the Court decided two cases on the same day, and the pairing is what makes the picture clear.

In National Federation of Independent Business v. OSHA, decided on January 13, 2022, the Court stayed an emergency rule from the Occupational Safety and Health Administration that required large employers to ensure that workers were vaccinated or tested. The Court's reasoning was about authority, not medicine. OSHA's statute empowers the agency to set workplace safety standards, and the Court said that the agency was not given the power to regulate the hazards of daily life, risks that people face outside work as well as in it, simply because they also occur at work.

In Biden v. Missouri, decided the same day, the Court allowed a different rule to take effect: a rule from the Centers for Medicare & Medicaid Services requiring vaccination for staff at facilities that participate in Medicare and Medicaid. The vote was five to four. The reason was, again, the statute. The Secretary of Health and Human Services has express statutory authority to impose conditions on facilities that participate in those programs, and the conditions that the Secretary had imposed fit within a long history of such conditions.

I put the two together deliberately, because the pairing refutes a lazy claim. Critics of the eviction ruling sometimes said that the Court simply opposed public-health measures. It did not. In one case it let a health rule stand and in another it blocked one, and the difference was not the subject, but the text: did Congress clearly give this agency this power? Where the answer was yes, the rule stood. Where the answer was no, it fell. That is what a rule of law looks like.

Step five: the major questions doctrine

The principle behind those rulings has a name. In West Virginia v. EPA, decided on June 30, 2022, the Court held that the Environmental Protection Agency had not been given clear authority to restructure the nation's power-generation sector, and it named and applied the major questions doctrine. The idea is that when an agency claims power to resolve a question of vast economic and political significance, it must point to clear congressional authorization, and a vague or ancient provision will not do.

The logic is easy to state. Congress is the branch that the Constitution vests with legislative power, in Article I, Section 1: "All legislative Powers herein granted shall be vested in a Congress of the United States." If an agency can discover major new powers in an old and ambiguous phrase, then Congress has not made the decision, and the people's representatives have not been held accountable for it. The doctrine returns the decision to the branch that can be voted out. For a longer treatment, see The Major Questions Doctrine Explained, From Tobacco to the Power Plants, and for the old rule about delegating legislative power in general, see The Sick Chicken Case of 1935 and the Doctrine That Could Rein In Agencies.

The steelman, and the answer

The best defense of the CDC's order goes like this, in the words its defenders would use.

A pandemic is an emergency without precedent in a century, and the evictions of large numbers of people during an outbreak could have increased the spread of disease and put pressure on hospitals. The statute authorizes measures "as in his judgment may be necessary," which gives the health official wide discretion. Congress cannot foresee every emergency, so a broad grant is the only way to ensure that an agency can respond. And the order was temporary, with exceptions, and was meant to protect public health, not to rewrite housing law.

I will take the points in turn.

1. "The statute gives broad discretion." It gives discretion over measures of the kind the statute lists, necessary to prevent the spread of disease. The Court read the catch-all in light of the examples. A power that can reach any contract between any two parties in the country is not discretion. It is a general police power, which the federal government does not have.
2. "Congress cannot foresee every emergency." True, and Congress knows how to act in one. It did so in the CARES Act, and in the extension of the moratorium in 2020. The remedy for an agency that lacks authority is to ask Congress for it. The answer that Congress might say no is not an argument against the requirement. It is the reason for it.
3. "The measure was temporary and well-meant." Both can be true, and neither is a source of legal authority. The Court's sentence about "desirable ends" answers it.
4. "The public health stakes were serious." They were, and the Court said so. But a rule that lets a serious problem create a power can be invoked by the next administration, about the next problem, and that is why the limit has to be a legal one.

That last point deserves a moment's thought from conservatives and progressives alike. Today's emergency power belongs to tomorrow's rival. The question to ask of any claim of agency authority is whether you would be comfortable giving it to the person you trust least.

The wider lesson

Look at the pattern. A statute from 1944, written for ships and pests at the border, becomes a housing regulation across fifty states. The Court's answer was not to deny that the government has any power in an epidemic, but to insist that the power come from Congress in clear words. That is a defense of self-government as much as of landlords. The people who passed the law are the people who answer to the voters. The people who wrote the order are not.

If you want the broader context, Chevron Began as a Win for Reagan's EPA, Which Makes Its Fall So Ironic tells the story of how courts came to defer to agency readings of statutes and why that changed in Loper Bright (2024), and The Emergency Docket Explained, and Why Both Parties Complain About It explains how a stay application like the one in this case reaches the Supreme Court in weeks instead of years. For the structural point about where a federal power must come from, Few and Defined, the Promise About Federal Power in Madison's Federalist 45 is the place to start. You can also read the text of the Constitution at the constitution page.

The case in brief

1. The CDC relied on Section 361 of the Public Health Service Act of 1944, whose text lists inspection, fumigation, disinfection, sanitation and pest extermination, and used it to halt evictions nationwide.
2. In Alabama Association of Realtors v. HHS (August 26, 2021), the Supreme Court held that the agency had exceeded its authority, writing that agencies may not "act unlawfully even in pursuit of desirable ends."
3. NFIB v. OSHA and Biden v. Missouri (January 13, 2022) show a rule, not a mood: the Court blocked one health measure and allowed another, and the difference was what Congress had clearly authorized.
4. West Virginia v. EPA (2022) names the major questions doctrine: a vast power needs a clear grant, and the grant must come from Congress, which answers to voters.
5. The test for any claim of agency power is whether you would accept it in the hands of the official you trust least.

What you can do: look up Section 361 of the Public Health Service Act, 42 U.S.C. section 264, on Congress.gov, read the list of measures it names, and ask your member of Congress whether the statute should be amended to say exactly what an agency may and may not do in an emergency.