On August 3, the Biden Administration issued an order from the Centers for Disease Control and Prevention creating a second “eviction moratorium” that extended the pause on eviction proceedings in state courts during the pandemic—sparking debate over whether such an action was legal and constitutional. Joining Jeffrey Rosen to debate those questions this week are Ilya Shapiro, vice president of the Cato Institute who’s written on this issue for Cato at Liberty, and Peter M. Shane, professor at the Ohio State University’s Moritz College of Law and author of a Washington Monthly piece about the moratorium.
This episode was recorded before the Supreme Court blocked part of New York State’s eviction moratorium. Read more on that here.
FULL PODCAST
This episode was produced by Jackie McDermott and engineered by Greg Scheckler. Research was provided by Amy Lu, Olivia Gross, and Lana Ulrich.
PARTICIPANTS
Ilya Shapiro is a vice president of the Cato Institute, director of the Robert A. Levy Center for Constitutional Studies, and publisher of the Cato Supreme Court Review. Ilya has written about the moratorium on the Cato At Liberty blog.
Peter M. Shane is the Jacob E. Davis and Jacob E. Davis II Chair in Law at the Ohio State University’s Moritz College of Law. He has written about the moratorium for Washington Monthly and wrote a leading casebook on separation of powers issues.
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
ADDITIONAL RESOURCES
- Ilya Shapiro and Josh Blackman, “The CDC’s Eviction Moratorium is Unconstitutional”
- Peter M. Shane, “No, the CDC Eviction Moratorium Does Not Raise Constitutional Issues”
- United States v. Lopez (1995)
- NFIB v. Sebellius (2012)
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TRANSCRIPT
This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.
[00:00:00] Jeffrey Rosen: I'm Jeffrey Rosen, President and CEO of the National Constitution Center, and welcome to We the People, a weekly show of constitutional debate. The National Constitution Center is a nonpartisan nonprofit chartered by Congress to increase awareness and understanding of the constitution among the American people. The Biden administration recently extended the Center for Disease Control's moratorium on eviction proceedings that followed a vigorous debate inside and outside the administration about whether or not that action was consistent with federal statutes and with the constitution.
On today's episode, we will explore the statutory and constitutional questions surrounding that debate with two of America's leading commentators on presidential power and the constitution. Ilya Shapiro is vice president of the Cato Institute, director of the Robert A. Levy Center for Constitutional Studies, and publisher of the Cato Supreme Court Review. He has written about the eviction moratorium on the Cato at Liberty blog. Ilya, it is always wonderful to have you on the show.
[00:01:09] Ilya Shapiro: Good to be back.
[00:01:10] Jeffrey Rosen: And Peter M. Shane is the Jacob E. Davis and Jacob E. Davis The Second Chair in Law at The Ohio State University's Moritz College of Law. He has written about the moratorium for the Washington Monthly and wrote a leading case book on separation of powers issues. Peter, it's great to have you on the show.
[00:01:28] Peter M. Shane: It's wonderful to be with you, Jeff, and to meet Ilya, whom I've never previously had a conversation. This is terrific.
[00:01:35] Jeffrey Rosen: Wonderful. Well, we're looking forward to it. And Peter, perhaps you can start us off by stating the facts as Professor Kingsfield used to say, the legality and constitutionality of the eviction moratorium has been reviewed by lower courts, by the Supreme Court and by a vigorous internal debate within the Biden administration. Tell us how we got to where we are now.
[00:01:56] Peter M. Shane: Sure. I- I will try to make this succinct. The order that's now being debated is actually the second order that the CDC issued for an eviction moratorium. The history of the- the moratoria or moratoriums started with Congress actually enacting 100, a 120 day moratorium that expired. After it expired, and this is during the Trump administration, President Trump asked the CDC to consider whether circumstances would warrant basically triggering any kind of remedial measures that they could take under the public health Public Health Act, and the CDC, in fact, imposed an eviction moratorium that started under the Trump administration. It was extended explicitly with cong- congressional approval at the turn of the, at turn of the new year, and then it was extended, again, under the Biden administration.
That extension of this sort of what I'll call the first order, expired by its own terms at the end of July. There was a lot of litigation about that, the lower courts disagreed about the legality of the order, whether really is measured by the statutory authority of the CDC under the Public Health Act, but in- in one of these cases, the case that was decided in the U.S. District Court from the District of Columbia Judge Friedrich, who is the trial court judge in- initially found that the CDC lacked the authority under the Public Health Act to im- impose something like an addiction moratorium, but she stayed her order, which meant that it wouldn't go into effect right away, and that moratorium would- would remain in effect.
The Alabama Association of Realtors who brought the case ask the D.C. Circuit to lift her stay, and allowed them to continue, allow their members to continue to evict non-paying tenants. The D.C. Circuit did not lift the stay and in- in its opinion, indicated that in the view of the panel, the government would likely prevail on the merits of mean, they thought it probably was lawful, at which point, the- the plaintiffs then went to the Supreme Court and asked them to lift the stay. So that to lift the stay in the Supreme Court would have taken five votes.
What happened is you had four of what we think of is the conservative block, they would have lifted the stay, we don't know, you know, they didn't offer any reasons, but they voted to lift stay. The three that we ordinarily consider the liberals voted not to lift the stay, but they were joined by Chief Justice Roberts also without explanation and by Justice Cavanagh. And justice Cavanagh wrote a statement for himself that just said "This thing is, basically this is gonna expire in a few weeks anyway, so I'm not voting to overturn it to- to lift the stay now. In other words, I will allow the- the moratorium to remain in effect for the next few weeks. But in my view, continuing the moratorium would require clear and explicit authority from Congress which had not yet been forthcoming."
So it's that opinion that has been the source of a lot of confusion. Because at one point in his press conference, President Biden seem to say, the National Review in a one columnist said, "The Washington Post and editorial all seem to treat this as a Supreme Court holding that the moratorium was, without legal authority, it wasn't a court holding at all." it might be an indication of, you know, where the, what the crystal ball should say about the likelihood of eventual success. But as- as far as the law is concerned, the stay was never lifted, there is nothing, there is no order out of D.C. in effect that the administration is defying.
So the CDC, after... The- the administration initially took the position, that it would need new authority to have a new moratorium. They- they changed tracks, they, the CDC did announce a second moratorium is different from the first in that it is not automatically a national scope, it only targets counties in which there is a very high rate of new infection, which is about 80% of the [inaudible 00:07:00]. And there's a lot of co- there's- there's been a lot of reporting back and forth about what led the administration for [inaudible 00:07:08] in this way and that's sort of where we are.
[00:06:54] Jeffrey Rosen: Wonderful. Thank you very much for walking us through that complicated path. So let's begin with the statutory language. Ilya, tell us what the relevant statute is, and whether or not you think that the new eviction moratorium violates the statute?
[00:07:12] Ilya Shapiro: Well, thanks, Jeff. Well, one, I'm- I'm gonna quibble with characterization of this being a narrower or narrower moratorium, it still covers more than 80 maybe 90% of- of what the other one covered under the same terms with severe criminal penalties for trying to engage in an eviction. So it's you know, it's- it's narrower, and, you know, I guess technically it is somewhat narrow, but it's still almost the- the, almost the whole enchilada. And you don't really have to go back to the, to the same to- to the drawing board in- in- in- in drawing up the challenge.
I think the- the legal arguments are exactly the same as in the ongoing litigation that as you note I'm still involved in. But this goes to the Public Health Service Act which says that the surgeon general with the approval of the secretary of health and human services is authorized to make and enforce such regulations as are necessary to prevent the introduction transmission or spread of communicable diseases and 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.
Now the reason why I read out that whole long list is because that's important. So this is a public health law that says HHS can, you know, delegate power to, in this case, the head of the CDC, who is not a senate confirmed official. That's a separate wrinkle in all of this, whether this unconfirmed official in the executive branch can take up this expansive power to- to regulate and- and restrict the massive national rental market.
But look at what is listed here, pest extermination, sanitation, destruction of animals, etc, and other measures. And so the problem is that you have this- this old canon of statutory construction, the Latin is a eiusdim generis, which means of the same kind. If you're listing a whole bunch of things, and then you say, and other such things or other things, they're kind of of that same kind. And so messing with the rental market, or as the CDC has also done for that matter, changing immigration rules and restrictions and excluding people traveling to the United States from Mexico that was also recently extended by the CDC.
Again, all of these huge executive branch power grabs are bipartisan. It happened under Trump, now it's happening under Biden, but the key problem is the CDC, the Biden administration, as the Trump administration did before, is justifying this expansive action by the phrase and other measures in that provision that I read out, but these other measures are nothing like the disinfection fumigation, animals pests, etc that were listed there. And that fundamentally, even before we get to more basic issues of- of constitutional law, whether Congress probably properly delegated that power to HHS, which in turn delegated to the CDC.
For that matter, and even more basic concept of whether Congress, the federal government can even regulate local rental markets. Before we even get to all of that, which I- I think we will, just the technical statutory interpretation poses a problem, because if- if you're saying, if the government is saying that, that other measures, part of the provision says, well, anything, well, then why have that list? Isn't this essentially a delegation to this unelected, not senate confirmed official to do anything that just in his or her judgment thinks may help stem the pandemic in some way, that can't be the law.
[00:10:59] Jeffrey Rosen: Peter, as Ilya says much of the statutory debate turns on the scope of this second sentence which he read, as you wrote in The Washington Monthly opponents of the moratorium argue that the second sentence about providing for inspection fumigation, disinfection, sanitation, pest extermination and so forth, shows a carefully delineated legislative attempt in one federal judge who read the statute narrowly said that Congress empowered the executive only to regulate animals or articles which are themselves infected or a source of contagion. But you then go on to say the defenders of the mo- moratorium, read the second sentence, is having no such limiting effect. How did the defenders read the second sentence? And what argument do you think is most persuasive?
[00:11:42] Peter M. Shane: The- the defenders of the moratorium read the second sentence as in a way confirming the breadth of the first sentence. So the first sentence that Ilya read does, you know, on its face, encompass eviction moratoriums, or indeed other- other unspecified measures, and it's really the breadth of that first sentence that the government is relying on, not that the- the tag end of the second sentence. The second sentence deals with a- a bunch of measures that would involve sei- seizures of property or trespasses that would otherwise create fourth amendment issues unless Congress had authorized ad- administrative measures of this time.
So one way of thinking about the two sentences from the proponents point of view is the first measure says, if we have, if we the CDC have figured out that something is necessary to prevent the communication of disease across state lines, you know, we can take that measure. And the second sentence says, and we can do that even if it involves measures that would amount to search and seizure. So I will just, and maybe this is just local Ohio pride, but that the- the the- the judge in Ohio, who in, you know, our kind of local version of the liti- this litigation, and, you know, may be clear that this judge also thought what, that Ilya's position was correct.
But the statute does not authorized the moratorium, but he characterize this as, you know, think an arcane question of statutory interpretation on which reasonable minds could differ. And if we were... In the, in- in my Washington Monthly piece, that kind of detail that competing, some of the competing canons of construction that would lead different judges to read the statute more or less broadly.
And- and I want to, I don't wanna pretend to be an expert in the whole body of public health law. If- if one were doing this, if- if I were on the bench, I would feel obliged not just to apply these canons and to think about, you know, the text, you know, using linguistic tools, I would also want to know what evidence we have of what Congress had in mind when it enacted these provisions in 1944. I'd want to know whether there are other statutes on, you know, the same subjects that might lead to a conclusion one way or the other.
People may, your administrative law listeners might remember a case involving the Brown and Williamson Company that was decided, I think in the 1980s, where the FDA claimed authority, I'm sorry, the 1990s, claimed authority during the Clinton administration to regulate tobacco. And there was no doubt that the language of the statute was literally did allow for the FDA to regulate tobacco. But the court, majority in the court concluded Justice O'Connor wrote the opinion that Congress had so extensively regulated how the government should kind of interact with the tobacco industry, that it would not, that is the court would not infer from the very broad general language of the Food, Drug and Cosmetic Act, that tobacco was suddenly subject to FDA regulation.
And I think, you know, again, if I were a judge, I would want to know more about the body of law that might bear on the scope of the F- the CDCs authority. I- I- I think it's a close question. I don't think opponents I don't think Ilya's argument is by any means trivial, but the just department argued with some success in some lower courts, both under the Trump administration and under the Biden administration that the legal authority exists. So certainly, if I were a government lawyer, I would feel comfortable making those arguments in court.
[00:15:46] Jeffrey Rosen: Thank you very much for that. Well as of March, two district courts that have held the moratorium and to struck it down, there have been more rulings since then including new challenges not only to the statutory authority, but on constitutional grounds. And Ilya and the Cato Institute have filed a brief in the Texas case challenging the application of the moratorium in Texas, on several constitutional grounds, including arguing that Congress lacks authority under the Commerce Clause to pass the moratorium, and the- the statute is so broad that it violates the so called non delegation doctrine. Ilya, introduce us to the constitutional arguments that you were making against the moratorium in Texas.
[00:16:33] Ilya Shapiro: Sure. I mean, the- the arguments work the same way, whether they're in Texas or- or- or D.C., or Ohio, or- or- or anywhere else, 'cause the mark, there's one more turn, where there was one now, there- there's a different one, it's all coming from Washington, which is the problem. And it actually raises a separate issue that different states are trying to address this issue with their own state eviction moratorium or other measures, and the CDC and its own terms can only act when state measures are- are insufficient.
But in any event there's a very fundamental problem about whether the federal government has any regulatory authority over local rental contracts. I mean when somebody is renting we're not talking about large commercial enterprises with, you know, multi state leases, or- or what have you of warehouses and facilities and so forth, we're talking about, you know, local apartments or- or houses or things like that, the things that probably most listeners are- are familiar with they might be renters themselves, they surely were renters when they were you know, younger, etc.
And the idea that the federal government can, through its power to regulate interstate commerce, can regulate these- these local contracts between a landlord and a an- an tenant. And again, not talking about multi state huge landlords, but just, you know, small small businesses. Some- sometimes the- the landlord will occupies the same building, rent out a room or rent out part of a house, things like that. That goes beyond I think, the Congress's power to regulate, you know, interstate commerce.
Again, Congress doesn't just have a blank check to regulate anything that has a dollar sign in front of it. There has to be that- that- that nexus and the definition of commerce is generally or at least was understood at the time of the enactment of the constitution or the ratification that a commerce means trade it's not just anything that's that has a dollar sign attached to it.
And also it's unclear that Congress can delegate away, this is a separate a constitutional argument, the non-delegation argument, but it's unclear that Congress can dele- delegate away even if it did have the power to regulate these local contracts for renting property can delegate that power, which is legislative to the executive branch albeit there hasn't been an invalidation of a congressional delegation to the executive branch since 1935 but still, there seems to be some app- appetite on this Supreme Court for finding an appropriate case to put teeth back into the- the non-delegation doctrine.
[00:19:02] Jeffrey Rosen: Peter Ilya's argument against the constitutionality of the moratorium under the Commerce Clause has two components. First, that Congress can't regulate evictions because they're local rather than national activities and therefore don't affect interstate commerce, and the second that the decision about whether or not to evict is not an economic activity, and therefore it can't be regulated under the Commerce Clause at all.
This question of the scope of the Commerce Clause is very hotly contested right now on the Supreme Court, it came up in the Affordable Care Act case, it dates back to the New Deal. Tell us, under existing precedents and the most recent important one is the Affordable Care Act case, do you find the argument that the eviction moratorium is unconstitutional under Congress's commerce power, convincing or not?
[00:19:48] Peter M. Shane: I don't find it persuasive. And, again, just to ma- make clear that we're focusing on the Commerce Clause argument, not the delegation point here. I'm- I'm imagining, and I'm asking, you know, listeners to imagine a statute that would have explicitly authorized an eviction moratorium as a way of preventing communicable disease from crossing state lines. So let's imagine there's no issue about whether you know, Congress had given a very big license to- to do whatever the CDC in its discretion thought was useful instead that they had spelled out very clearly that they wanted an eviction moratorium.
The most recent, I guess, comprehensive statement of or synthesis of the Supreme Court's thinking about what the Commerce Clause allows, was actually Lopez versus, United States versus Lopez in the 1990s. This is an opinion written by then Chief Justice Rehnquist, who even though Lopez which invalidated a an aspect of the this, I for- I forget the exact name of the statute, but it's the- the statute that prevented guns from being carried within a certain number of feet of schools.
Chief Justice Rehnquist said that this case left intact the authority of Congress to protect interstate commerce from threats with, you know, from wherever they might come, including from local- local events, local transactions. And you know, we- we've seen this in with regard in to anti-discrimination law, we've seen this with regard to environmental law. There's- there really no doubt that that transmission of COVID in any of its variants, has had an downing effect on interstate commerce. And if Congress believes that limiting the communicability of the disease over state lines would or at all, would protect interstate commerce, even the transmi- the transmission of the disease locally, and if- if I'm staying out of a restaurant, because I've caught COVID from somebody, my- my neighbor can get more, much more local than that.
But I'm not going to a restaurant, if I'm not going to a restaurant, well, that restaurant's purchase of food interstate is gonna go down, their purchasing supplies interstate is gonna go down. The same, you could say that with regard to hotels, you know, entertainment, virtually any industry. So Congress could decide that the spread of COVID is- is an enormous threat to interstate commerce, and it could authorize interstate commerce to be protected from from this threat. I should also say, Congress could also work such a statute in a way that they were regulating directly, people who participated in interstate commerce, that is Congress could have said that you know, at least renters or, you know, who are, excuse me, landlords who are engaged in interstate advertising or have some other connection with interstate commerce that they cannot conduct evictions during this moratorium.
So they could have done it with that kind of jurisdictional provision, or they could have relied on just the threat to commerce in general. With regard to the fact that, you know, we're talking about a- a- a government practice, it's still a government practice, that is the eviction practice, is still a government practice triggered by landlords based on the non-payment of of rent. And it is so intimately connected with an economic transaction that- that I think it's just very hard to argue that- that it's beyond Congress's authority to regulate, assuming this other nexus with interstate commerce.
[00:23:39] Jeffrey Rosen: Ilya, invoking of Lopez case, which Peter just cited you know that Lopez distinguishes between what's truly national and what's truly local, and you argue that Congress can only regulate interstate economic activity and not non-economic activity, and the legal process of eviction is not economic in nature and eviction cannot be produced, distributed or consumed, it cannot be sold, exchanged or bartered. It would be insulting to describe an additional process of having an apparent commercial character, and therefore Congress lacks the power to criminalize this legal process of eviction, which is not an economic activity.
The Supreme Court in the Affordable Care Act case narrowed the scope of the Commerce Clause in an opinion that Chief Justice Roberts joined along with the other conservative justices, based on what the court said about the Commerce Clause in the Affordable Care Act case, do you imagine that it would agree with your Commerce Clause argument or not?
[00:24:35] Ilya Shapiro: Well, I don't think it would agree with Peter's argument that there are essentially no limits on federal power, because everything affects everything at the end of the day, and, you know, the going out to eat is restricted by a disease, and, you know, all- all the rest of it. I mean, that I- I hard no possible limiting principle there, so that can't be right.
What the court said in the Obamacare case NFIB versus Sebelius, was that Congress cannot create or force economic activity in order to then regulate it under the Commerce Clause or under the Necessary and Proper Clause application of the Commerce Clause, in that case, that- that was health insurance. Congress cannot require you to buy health insurance in order to regulate it as part of a larger national market of health care or health insurance. Here, it's not that Congress is creating rental agreements or- or those kinds of relationships, nor is it creating evictions nor- nor is it even creating the- the eviction judicial process.
Each state has its own judicial process for filing a petition of- of eviction in- in- in court so it's- it's unclear whether NFIB you know, how relevant it is other than, you know in- in- in considering that, you know, the, that- that legal process is not a commercial one, I- I suppose. But here the argument is over you know, whether the- the whole rental relationship or for- or- or forcing someone out of their home has an economic effect in various ways, whether that is a proper way of regulating interstate commerce relating to I guess, the pandemics impact on the national economy.
So I think it's a different sort of issue than NFIB was, but it is somewhat similar to Lopez in that there it was regulating someone's possession of a gun near a school, and here it's regulating a a contract or a legal process of eviction, which you correctly characterized Cato's brief is- is describing an attempt to regulate or an improper regulation of non-economic activity.
[00:26:41] Jeffrey Rosen: Peter, your thoughts on how the current Supreme Court would evaluate the Commerce Clause challenge to the eviction moratorium, if it were to take it up squarely.
[00:26:50] Peter M. Shane: I suspect that the current Supreme Court it... First of all, I always tell my [laughs] classes and constitutional administrative law that my crystal ball comes with the weakest batteries possible. So you know, I offered this prediction with some hesitation. You know, I- I think the chances are pretty significant that this court would find that the moratorium order exceeded statutory authority. I- I don't think that that's an unreasonable guess given what Justice Cavanagh said, and that there were four people who would have lifted the stay on the first on- on- on the order of banning the first moratorium.
But I don't think the, I don't think this court would even reach the constitutional question. I think the court would and- and clearly a court persuaded that the moratorium was unlawful as exceeding the statute would not need to and could not properly reach the constitutional question. Ilya said that, you know, he- he didn't hear, he [laughs] he didn't hear, in my response a limitation on Congress's Commerce Clause powers but so I'll be explicit, the limit is, the limit that the court referred to in Lopez and also in the Morrison case on the Violence Against Women Act, which is that the- the- the aggregation of activity, that is being regulated, has to be activity this economic in nature.
Now, I understand, you know, a- again, this is not a trivial or silly argument that by regulating diction, what's being regulated the use of a judicial process, but it is the use of a judicial process that is intimately connected with the enforcement of an economic obligation. And I- I just have a hard time imagining if the court would accept that argument. Tha- that is the argument that is somehow not economic activity. The re- the entire arrangement, the entire relationship between landlords and tenants strikes me as being within the bounds of what the court is willing to consider economic.
[00:29:05] Jeffrey Rosen: Ilya, you and Cato make other constitutional arguments against the moratorium in the Texas case, including the argument that it intrudes on state sovereignty and- and violates the non-delegation doctrine. Tell us what the non-delegation doctrine is, and- and why you think that the mo- moratorium violates it?
[00:29:25] Ilya Shapiro: Well, I mentioned this in- in passing before that Congress can't delegate the the legislative power to the executive or to anyone else, for that matter. This is the idea that we have the separation of powers and if- if- if Congress wants, you know, Congress is the, is the lawmaking body and the executive is the law enforcing or- or executing body and never the twain shall meet. So there has, the- the- the Supreme Court jurisprudence says that there has to be an intelligible principle.
You know, we don't expect Congress necessarily to write every jot and tittle of the regulations by which the modern administrative state operates but it can't just be a blank checks, and you can do whatever you want in- in any given area. In recent years, there have been a number of writings from the court and from- from what now constitutes a majority of justices saying that they're uneasy that with the current scope of the, of the delegation power seemingly Unlimited, and they're looking for the appropriate case, in which to to put teeth back into that doctrine, which as I mentioned, at the outset has not been used to invalidate an act of Congress since 1935.
Could this be the case? I'm not sure. Most- most scholars thought that then a non- that what the court was looking for is some completely low profile, very technical, maybe bankruptcy or- or some other area of law, where they could start reactivating the non-delegation doctrine, and so, you know, I would expect that if the plaintiffs su- succeed here, and they're challenged to the moratorium, that it would be more on the statutory argument without reaching either of these constitutional ones, frankly.
[00:31:06] Jeffrey Rosen: Peter, what are your thoughts on the non-delegation doctrine? It's been accepted by the district court in the [inaudible 00:33:15] case, which said that a non-delegation concern arises because of broad reading of the statute leaves the CDC without any intelligible principle to guide the agency's discretion. As Ilya said, this is a hotly contested issue on the U.S. Supreme Court and in the Gundy case, Justice Gorsuch called for a- a re- a revival of the non-delegation doctrine that Justice Kagan said would invalidate the entire administrative state. So it's, it is an important issue. On- on the merits, do you think that the eviction moratorium violates the non-delegation doctrine or not?
[00:31:49] Peter M. Shane: Well, the eviction moratorium, because the- the real question is, does the Public Health Service Act, if it authorizes, if it's read to authorize an eviction moratorium violate the non-delegation doctrine? The theory being that to allow the first sentence to go as far as the government wants it to go is a bit, is basically to write a- a blank check for administrative discretion, unconfined by, as Ilya said, an inte- the intelligible principle that the court ordinarily requires as a- a sign that the delegation of policymaking authority is sufficiently channeled to be constitutional.
I think the reason, I- I'll just say again, I mean, I, so Ilya, I found a point of agreement here, which is that if this court were to were to find this particular element of the case troubling, if they were worried about how broad a reading the government is urging for that first sentence, they would most likely use that concern as a way reading the statute narrowly. There is a, you know, a- a cannon of construction that is a- a rule of thumb that courts ordinarily use, I'm sure you've discussed it in a variety of contexts called the constitutional avoidance doctrine.
If you had a statute that can be read in two different plausible ways based on the text, but one of those linguistically plausible ways would raise a serious constitutional question, that indicates the judgments or other interpreters should prefer the- the other reading, the non-troublesome reading. So a judge who- who leaves the Congress, if it were to write this much discretion into the CDC's operating authority, if they really think that, that's a constitutional problem, or raises a serious constitutional issue, that would be a reason for reading the statute the way that Ilya is urging, that is to read the second sentence as being an indication of how limited the statute is. It doesn't really apply as broadly as a literal reading of the first sentence would permit.
On the bigger question of the non-delegation doctrine, I have to say you know, it- it- it is something to see you know, the new enthusiasm for the non-delegation doctrine after you know, we- we've now had we have to go back to, over the New Deal, just to have to find the only cases in the history of the court in which the non-delegation doctrine has ever been used to invalidate acts of Congress.
And one reason, and I think there are two reasons for that, maybe the primary reason is the court is very conscious of its own the unelected nature of the federal judiciary, and its concern that in tightening up on the delegation doctrine, it is inviting itself perhaps to edge too close to usurping the legislative role and deciding how much discretion is too much or too little. For the executive branch to have that's a democratic, question the democratic politics, there ought to be left to the elected branches.
And the second thing is, you know, nobody's come up with what five justices agree is a compelling alternative more robust version of what the non-delegation doctrine requires, other than the intelligible principle requirement. Just as [inaudible 00:37:25] as his Gundy opinion does suggest what other tests might be, but they have not- not, they've gotten the majority's endorsement, because they will all be hard to apply in any kind of objective way.
There's interesting scholarship going on now, of course, you know, of what's fascinating for- for some of us also, is that when teeth are gnashed about the breadth of congressional delegation, it's often said, you know, remember the framers wanted the separation of powers where this is going, this is, this gives over to the executive branch power that the framers intended remain with the legislative branch.
But there's interesting historical argument the other way, namely, that there's an important article by Nick Bagley and Julian Mortensen in Michigan that suggests that the non-delegation doctrine properly understood really is only a bar to delegating authority that Congress cannot take back, that it would only be the inalienable divesting of legislative authority that's barred by the Constitution, not by giving the executive branch very broad administrative discretion to do what it thinks best.
And Nick Perillo at Yale has written an equally fascinating paper showing how much authority Congress delegated when it passed the kind of first set of, direct federal taxes. The- the first set of federal taxes had to be applied based upon property not, there was no income tax, which required property to be valued in every state. They set up federal boards in every state that came up with rules for local assessment. And those rules were completely unconstrained by any statutory criteria. They were just, the boards were to use their best judgment. And so I just wanna say, for me, I think it's ironic that the plea to reinvigorate the non-delegation doctrine comes from folks who claim to be constitutional originalist, but are not always as nuanced in their historical investigation as might be appropriate.
[00:37:31] Jeffrey Rosen: Ilya, you've both agreed that the court is less likely to invalidate this eviction moratorium if it were decided on constitutional grounds then to construe the statutory language narrowly and- and avoid the constitutional questions. Given that are there other cases or challenges on the horizon that you're following or involved in, that you think are more likely to give the court an opportunity to re-examine the scope of the Commerce Clause and the non-delegation doctrine?
[00:38:02] Ilya Shapiro: The Commerce Clause, I keep hoping the court takes one of these weird, what I characterize as weird critter cases, where there's some obscure fauna, microfauna, typically and in some obscure corner of- of a state and doesn't travel anywhere and has no commercial value and yet is being regulated by whether the Endangered Species Act or- or some other regulatory scheme, but the- the court has steered away from that in- in all sorts of contexts.
And that, you know, what seemed to be a- a- a ripe issue, because it's not some, you know, national political hot button, and typically, these animals aren't even cute. So as far as not, but- but I- I don't know, I don't know, it wo- it would take you know, some other, you know, new novel scheme for Congress to come up with like Obamacare 10 years ago for the court to start looking at that sort of thing.
As far as non-delegation goes you know, I'm- I'm in a lot of talking groups where people, administrative law experts are- are thinking about what would be the ideal case or- or what the standard would be. Peter mentioned that nobody's come up with anything better than the intelligible principle and that's probably right.
And you- you can kind of, I- I think, when a- a suitable case comes up with comes up with and I- I suspect it would be, as I said, was something non sexy, some very technical area of law regulation, or Congress just gave super broad discretion to this or that secretary or- or agency had that the court won't establish some new principle, it'll- it'll just say, you know, whatever the rule is, what- whatever the- the scope of- of- of the delegation power is, this goes beyond it, because there really is no, you know, no limit if we allow this.
[00:39:37] Jeffrey Rosen: Well, it is time for closing arguments in this informative and important discussion. And, Peter, the first is do you please sum up for our wrapped We the People listeners, why you believe that the Biden administration's latest extension of the eviction moratorium does not violate federal statutes or the constitution?
[00:40:04] Peter M. Shane: Well, the thing I wanna say confidently is that it is not unconstitutional, because the Biden administration is not purporting to rest on some novel theory of presidential power, they are not claiming the authority to defy any court order. There's been no court order that the administration has defined. The only authority that they're claiming is the authority they're claiming that the Public Health Service Act properly interpreted gives the Center for, Centers for Disease Control authority to employ measures to prevent the transmission of communicable disease across state lines, and that this is the eviction moratorium is a proper exercise that statutory authority.
So I wanna say with 100% confidence that there's no separation of powers conflict here. But the issue of statutory interpretation, I think, is a- a question about which reasonable minds could differ as Judge Calabresi said in Ohio. I am, I would lean toward the the government's argument, mainly because I think it's consistent, it is consistent with the the first sentence of the- the paragraph at issue, but also because I think it just gives effect to the purpose of the statute, which is to empower the government to solve a problem, a public health problem when that problem becomes one of concern to every state, not just, you know, any one state and locality.
But it is a close question, and I, and I do wanna say I- I- I would feel... Be- before I had a confident answer on this, I know, you know, podcast you always had a confident answer, to really have a confidence in my answer that I would want as a judge, I really want to know more about the entire statutory framework that applies in cases like this, and not just focus on- on the two sentences alone.
[00:41:53] Jeffrey Rosen: Thank you so much for that. There is no need for confident answers on We the People Podcast, which is all about vigorous and respectful, intellectual debates and learning from each other. Ilya your the last word to teach our We the People listeners and try to convince them? Please sum up why you believe that the eviction moratorium is not authorized by federal statute and violates the constitution.
[00:42:16] Ilya Shapiro: Well, first of all, Jeff, I- I must say that I agree with Peter's description that the- there is no current Supreme Court order that the Biden administration is violating by promulgating this- this new moratorium. I think that the president did kinda muddy the waters as Jack Goldsmith described in the piece at law fair that you referred to at the beginning of this podcast in making it seem that he was an open defiance of the law. I think he- he is sort of, or the administration is showing a bit of whether it's contempt, or just slapping the- the- the olive branch that Justice Cavanagh extended, by allowing the moratorium to stay in place when he did, even though he thought it was unconstitutional, or going beyond agency power, rather.
And so it- it does look like the- the, I mean, the president was announcing that he thought he probably didn't have the power to do it, but at least, let's- let's keep it going for a while so we can keep distributing this money until- until courts stop that. And- and that really made it seem like something, you know, from Andrew Jackson saying the court has ruled and now let it enforce it or the DACA example in, with President Obama saying, "22 times I'm a president, not a king can't do this." And then he did it anyway, when he talked to the right lawyers.
So, you know this is I think there are elements of- of bad faith here that really go back to the idea that if an agency, CDC or otherwise has this expansive, limitless power to do anything that it thinks might have an impact on on the pandemic, then there we really are not a nation of laws, but of- of- of men and women. And indeed, the CDC's own data doesn't necessarily show that- that even if it had this power, that it's reasonably necessary to take this massive step and intrude in all of these rental agreements and- and stop these these processes.
So I think anyone who- who doesn't think that the, you know, the federal government just gets to do whatever it thinks is- is- is right and just and I don't know, kind in- in addressing a serious issues, whether that be a lack of healthcare, whether that be poor education, or in this case, whether it be addressing a pandemic, anyone who- who thinks that there are limits on federal power, or at least that Congress has to be the one to take breathtaking exertions of federal power rather than the executive branch of its own volition I think will agree with what the Supreme Court ultimately is very likely to do, and that is to put a stop to this so called narrower but not really moratorium.
[00:44:59] Jeffrey Rosen: Thank you so much, Peter Shane and Ilya Shapiro for a respectful and illuminating discussion of the legal and constitutional issues surrounding the eviction moratorium, full of nuance and complexity, just like the Constitution itself. Peter, Ilya, thank you so much for joining.
[00:45:19] Peter M. Shane: Great to be with you, Jeff.
[00:45:20] Ilya Shapiro: An illuminating discussion as always.
[00:45:26] Jeffrey Rosen: Today's show was produced by Jackie McDermott, and engineered by Greg Scheckler. Research was provided by Amy Lu, Olivia Gross and Lana Ulrich. Please rate, review and subscribe to We the People on Apple Podcasts, and recommend the show to friends, colleagues or anyone anywhere who is hungry for a weekly dose of constitutional statutory and legal debate. And always remember that the National Constitution Center is a private nonprofit, we rely on the generosity, the passion, the- the- the willingness to take the time to educate yourself, people like you from around the country who are inspired by our nonpartisan mission of constitutional education and debate.
You can support the mission by becoming a member at constitutioncenter.org/membership, or give a donation of any amount to support our work including this podcast at constitutioncenter.org/donate. On behalf of the National Constitution Center, I'm Jeffrey Rosen.
