Today was a big day for the Centers for Disease Control eviction moratorium! First, the CDC extended the moratorium until June 30 (I wrote about that development here). Then, the US Court of Appeals for the Sixth Circuit issued the first appellate court ruling in the litigation over the moratorium’s legality. In Tiger Lilly, LLC v. Department of Housing and Urban Development, upheld a trial court decision holding that the moratorium is illegal. The Sixth Circuit’s reasoning is similar to that of the trial court in this same case, and that of one of the two previous district court decisions against the moratorium. Here is the key part of the opinion:
To slow disease transmission, the HHS Secretary, and the CDC by extension, can impose specific restrictions on both property interests, see 42 U.S.C. § 264(a), and liberty interests, see id. § 264(d). As to the former, the Secretary “may provide for such 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.” Id. § 264(a). The government asserts that a nationwide eviction moratorium is among the “other measures” for disease control that Congress envisioned when drafting the statute.
We disagree. This kind of catchall provision at the end of a list of specific items warrants application of the ejusdem generiscanon, which says that “where general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words.” Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 114–15 (2001) (citation omitted). The residual phrase in § 264(a) is “controlled and defined by reference to the enumerated categories...before it,” id. at 115, such that the “other measures” envisioned in the statute are measures like “inspection, fumigation, disinfection, sanitation, pest extermination” and so on, 42 U.S.C. § 264(a). Plainly, government intrusion on property to sanitize and dispose of infected matter is different in nature from a moratorium on evictions. See Terkel v. CDC, No. 6:20–cv–00564, 2021 WL 742877, at *6 (E.D. Tex. Feb. 25, 2021) (holding that the Halt Order exceeded the scope of the CDC’s authority and observing that “eviction is fundamentally the vindication of the property owner’s possessory interest”). The Halt Order thus falls outside the scope of the statute.
Like the two district court rulings, the Sixth Circuit emphasizes that the government’s interpretation of the statute would raise serious constitutional problems, because it would violate constraints on Congress’ ability to delegate power to the executive branch:
As the district court noted, the broad construction of § 264 the government proposes raises…. concerns about the delegation of legislative power to the executive branch. The government would have us construe the phrase “and other measures, as in his judgment may be necessary,” 42 U.S.C. § 264, as a “broad grant of authority” to impose any number of regulatory actions, provided the Secretary believes those actions will help prevent the spread of disease, regardless of whether they are in any way tethered to the “specific intrusions on private property described in the second sentence” of § 264. “In the absence of a clear mandate in the Act, it is unreasonable to assume that Congress intended to give the Secretary the unprecedented power” of that kind. Indus. Union Dep’t, AFL–CIO v. API, 448 U.S. 607, 645 (1980) (plurality opinion). We will not make such an unreasonable assumption.
I have been beating the drum on this nondelegation issue since my very first commentary on the eviction moratorium, back when it was first issued by the Trump administration in September 2020. Many federal judges seem to have the same reservations.
The Sixth Circuit also concludes that the government’s interpretation of the law violates the rule that courts should not interpret federal law to usurp traditional areas of state government authority, unless Congress has clearly indicated its intent to do so:
[E]ven if we were inclined to construe the phrase “other measures” as expansively as the government suggests, we cannot read the Public Health Service Act to grant the CDC the power to insert itself into the landlord–tenant relationship without some clear, unequivocal textual evidence of Congress’s intent to do so. Regulation of the landlord–tenant relationship is historically the province of the states…. It is an “ordinary rule of statutory construction that if Congress intends to alter the usual constitutional balance between the States and the Federal Government, it must make its intention to do so unmistakably clear in the language of the statute.” Will v. Mich. Dep’t of State Police, 491 U.S. 58, 65 (1989) (quotation marks and citation omitted)… There is no “unmistakably clear” language in the Public Health Service Act indicating Congress’s intent to invade the traditionally State–operated arena of landlord–tenant relationship.
Technically, today’s ruling is not a final decision on the merits of the case. All it does is reject the federal government’s motion to stay the district court ruling until such time as the appeal process is completed. However, one of the criteria for granting a stay is the appellate court’s assessment of the moving party’s likelihood of prevailing on the merits. For reasons discussed above, the Sixth Circuit panel concluded that the government has little or no chance of prevailing, and that is the reason why it rejected the motion for a stay. Thus, today’s ruling is almost certainly a preview of what the panel will conclude when it does decide on the merits (possibly sometime in the next few weeks).
Like the trial court, the Sixth Circuit decision assesses the legality of Biden’s initial revival of the moratorium first issued by Trump. It does not consider today’s additional extension of the moratorium or the additional justifications offered by the CDC in its extension order. It is possible that the Sixth Circuit will reach a different conclusion when it issues its final decision on the merits, and has a chance to consider the latest version of the order. But for reasons I explained in my post about the extension earlier today, I think it is unlikely that courts will view legal rationale for new extension as any stronger than the old. We may soon see whether I am right about that or not.
It is, perhaps worth noting that all three of the judges on the Sixth Circuit panel are Republican appointees, as were all three lower court judges who ruled against the moratorium. One GOP appointee and one Democratic one ruled in favor of the government. Thus, it is still possible that we will ultimately see an ideological split over this issue, despite the fact that the eviction order was first adopted by the Trump administration. For reasons I outlined here and here, liberal Democrats have good reason to be skeptical of the legality of this order, as much as do conservative Republicans. But liberal judges may not see it that way.
Be that as it may, it is at least clear that the case against the moratorium has legs. Multiple federal courts have now ruled against it. And the judges who issued those decisions are not easily dismissed as incompetents or wacky extremists. One of the judges on today’s Sixth Circuit panel is Amul Thapar, a George W. Bush nominee who is a major figure in conservative legal circles, and often considered a potential Supreme Court appointee. The fact that he thinks the moratorium is illegal doesn’t automatically prove that it actually is. But it does show that the arguments against it cannot be easily dismissed.
NOTE: The plaintiffs in some of the lawsuits against the eviction moratorium are represented by the Pacific Legal Foundation, where my wife works. I myself have played a minor (unpaid) role in advising PLF on this litigation.
UPDATE: I have changed the phrase where I said that the Sixth Circuit will “probably” issue a final decision in the next few weeks to “possibly.” The latter better reflects the degree of uncertainty surrounding the timing.
Ilya Somin is Professor of Law at George Mason University, and author of Free to Move: Foot Voting, Migration, and Political Freedom and Democracy and Political Ignorance: Why Smaller Government is Smarter.