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The government never had the authority to create such a moratorium in the first place, as found by the SCOTUS: https://www.nytimes.com/2021/08/26/us/eviction-mo

The government never had the authority to create such a moratorium in the first place, as found by the SCOTUS: https://www.nytimes.com/2021/08/26/us/eviction-moratorium-ends.html https://www.nytimes.com/2021/08/26/us/eviction-moratorium-en... From the ruling: “The C.D.C. has imposed a nationwide moratorium on evictions in reliance on a decades-old statute that authorizes it to implement measures like fumigation and pest extermination,” the opinion said. “It strains credulity to believe that this statute grants the C.D.C. the sweeping authority that it asserts.”

zuminator 5y ago
To be clear, SCOTUS did not find that the government didn't have the authority. It rather explicitly stated that the C.D.C. does not, but Congress does. Which for good or ill, it declined to exercise.
- chithanh 5y ago
  But Congress is not part of the government branch, it is part of the legislative branch.
  - hdctambien 5y ago
    There isn't a "government branch". The is legislative, executive, and judicial. They are all "the government".
    - H8crilA 5y ago
      It's not just a technical distinction, the executive is under much stricter rules than the congress, which is only bound by the constitution (although it can also change that, with some extra steps). The debt ceiling is a great example. The executive cannot spend what congress hasn't authorized.
      - avs733 5y ago
        This is neither coherent not correct.
        H8crilA 5y ago
        Well, thanks for explaining.
        adolph 5y ago
        If it isn’t coherent, how can you tell?
      - hdctambien 5y ago
        I was explaining that there is no "government branch", but as someone else pointed out that may have just been a translation error. What you say about spending is correct. And, yeah, the differences between the legislative and executive branches are important and more than technicalities. I wouldn't say the executive branch is under "stricter rules" than the legislative branch. It just has different rules and different responsibilities. The legislative branch creates laws. The executive branch enforces/executes laws. The judicial branch makes sure those laws are constitutional and identifies their limits/scope. Of course there is some gray area as congress likes to give some of its powers to the executive branch so that they can say "that wasn't my idea" to unpopular ideas. Rather than make a law that says "forget about all that rent from last year" they would more likely make a law that says "someone in the executive branch has the power to say: forget about all that rent" The other route would be for the judicial branch to say the executive branch already has that power... But they just said it doesn't. And that's how the wheel of government turns... In the US
        H8crilA 5y ago
        https://www.house.gov/the-house-explained/branches-of-government https://www.house.gov/the-house-explained/branches-of-govern...
    - mannerheim 5y ago
      I think GP has a misunderstanding involving the difference between 'government' in the American English sense versus in other countries[0]: > In the United States, "government" is considered to be divided into three branches; the legislature (the House of Representatives and the Senate) which makes law, the Administration (under the President) which runs sections of government within the law, and the Courts, which adjudicate on matters of the law. This is a much wider meaning of "government" than exists in other countries where the term "government" means the ruling political force of the prime minister and his/her cabinet ministers (what Americans would call the Administration). I believe usually in countries with a parliamentary system, the government refers specifically to the executive branch, and neither the legislature nor the judiciary. [0]: https://en.wiktionary.org/wiki/government#Usage_notes https://en.wiktionary.org/wiki/government#Usage_notes
- differentView 5y ago
  The CDC did what it thought was pragmatically the best thing to do considering the political reality at the time.
  - giantg2 5y ago
    What's that, undermining rule of law and the integrity of the system? The road to hell is paved with good intentions.
  - Fellshard 5y ago
    You don't 'pragmatically' step outside of your constitutionally and/or legally defined boundaries. That is definitionally not pragmatic.
    - jeffbee 5y ago
      But the CDC's emergency authority delegated to it by Congress is incredibly broad and puts almost no limits on their powers.
      - throwawayboise 5y ago
        If that's true then that's a problem. There are worse things than getting sick.
        ruined 5y ago
        like what, revolutionary land reform? the eviction moratorium was implemented because the alternative was a good fraction of the population getting evicted on a very short timescale. the legal and police infrastructure to carry it out simply did not exist, and any attempt would have been overwhelmed with refusal and defensive organizing. any solution would have been problematic and disruptive to property rights. the CDC exceeding their authority just provided some realpolitik deniability for elected officials, and prevented open revolt.
        vkou 5y ago
        If that's true, I disagree that it's a problem. Congress gave it this power, if you don't like it, vote for a different congress. > There are worse things than getting sick. Disease control codes are as old as law. We live in a society, and part of keeping society running is keeping it healthy.
- bpodgursky 5y ago
  I don't think this is an important point. There's no law allowing it. If the "government" wanted something enough, they could get a supermajority together in congress and amend the constitution to make literally anything legal. But they haven't, in this case, done so.
  - ananonymoususer 5y ago
    You are forgetting about the (often ignored) Tenth Amendment.
    - bpodgursky 5y ago
      Congress could eliminate the tenth amendment anytime it had a supermajority... there's no clause in the constitution that cannot be amended.
      - ananonymoususer 5y ago
        I'm not sure such a proposal would fly. It would be overtly acknowledging the policy shift toward a federal power grab. There would be some resistance and perhaps even some re-balancing of federal/state powers in the end. As long as the Tenth is there, it is part of the constitution which all elected officials have sworn an oath to uphold.
      - flenserboy 5y ago
        Not by itself. It must go through the States via the ratification process. https://www.archives.gov/federal-register/constitution https://www.archives.gov/federal-register/constitution
- threatofrain 5y ago
  The language in the ruling also suggests it was the length of time which caused the court to believe the motivation had to do with financial policy more than public health policy. It is not that the CDC has no authority, just that they exceeded it.
- ananonymoususer 5y ago
  Any such move by Congress would also be challenged as an unconstitutional violation of the Fifth Amendment (Takings Clause).
  - Meekro 5y ago
    There was also a rather creative argument based on the Third Amendment (quartering of troops), assuming at least some of the tenants were soldiers.
  - urthor 5y ago
    It's also very difficult to justify under the commerce clause I imagine. That said, the US constitution is an interesting beast, because of the Supreme Court's very very progressive interpretation of the commerce clause. The Supreme Court has a very large amount of discretion in these things.
lakecresva 5y ago
This comment is somewhat disingenuous. The full text of the statutory provision (42 U.S.C. § 264) is : "The Surgeon General, with the approval of the Secretary, is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession. For purposes of carrying out and enforcing such regulations, the Surgeon General 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." While it's true that the majority wasn't willing to separate the first and second sentences, the decision was along party lines, and it just does not seem reasonable to me that a federal law intended to give the HHS "responsibility for preventing the introduction, transmission and spread of communicable diseases from foreign countries into the United States" would limit the authority granted in the section "Regulations to control communicable diseases" to nothing more than fumigation and pest control.
- xyzzyz 5y ago
  Why not? To what would Congress would limit the authority then, if not to what it explicitly says they are allowed to? I mean, there must be some limits on what CDC is allowed to do based on that statue, as it would be completely absurd to expect that Surgeon General gets all powers of federal government limited only by what “may be necessary in his judgment”. So, if there are some limits, why not understand those in terms of what that very section explicitly lists?
  - lakecresva 5y ago
    > So, if there are some limits, why not understand those in terms of what that very section explicitly lists? Because the list ends with "and other measures, as in his judgment may be necessary.", and the text forces you believe that either a) the federal government intended to express a belief (in the same bill that officially gives the federal government quarantine authority) that disease could be contained via sanitation and pest control, or that b) they intended to give the Surgeon General a lot of latitude.
zzyzxxz 5y ago
One of the dissenting opinions (Sotomayor, I think?) stated that the CDC is allowed to do things like quarantines, and therefore something more benign like an eviction moratorium ought to be allowed too. I found that logic pretty convincing that the Trump-appointed justices were in the wrong. But, right and wrong don't really matter -- just winning.
- SllX 5y ago
  The CDC is allowed to do what is authorized by Congress within the limits of the Constitution. If that does not include eviction moratoriums but it does include quarantines, then it does not follow that because the CDC may quarantine people it may also issue a nation-wide eviction moratorium.

zuminator 5y ago

To be clear, SCOTUS did not find that the government didn't have the authority. It rather explicitly stated that the C.D.C. does not, but Congress does. Which for good or ill, it declined to exercise.

chithanh 5y ago
But Congress is not part of the government branch, it is part of the legislative branch.
- hdctambien 5y ago
  There isn't a "government branch". The is legislative, executive, and judicial. They are all "the government".
  - H8crilA 5y ago
    It's not just a technical distinction, the executive is under much stricter rules than the congress, which is only bound by the constitution (although it can also change that, with some extra steps). The debt ceiling is a great example. The executive cannot spend what congress hasn't authorized.
    - avs733 5y ago
      This is neither coherent not correct.
      - H8crilA 5y ago
        Well, thanks for explaining.
      - adolph 5y ago
        If it isn’t coherent, how can you tell?
    - hdctambien 5y ago
      I was explaining that there is no "government branch", but as someone else pointed out that may have just been a translation error. What you say about spending is correct. And, yeah, the differences between the legislative and executive branches are important and more than technicalities. I wouldn't say the executive branch is under "stricter rules" than the legislative branch. It just has different rules and different responsibilities. The legislative branch creates laws. The executive branch enforces/executes laws. The judicial branch makes sure those laws are constitutional and identifies their limits/scope. Of course there is some gray area as congress likes to give some of its powers to the executive branch so that they can say "that wasn't my idea" to unpopular ideas. Rather than make a law that says "forget about all that rent from last year" they would more likely make a law that says "someone in the executive branch has the power to say: forget about all that rent" The other route would be for the judicial branch to say the executive branch already has that power... But they just said it doesn't. And that's how the wheel of government turns... In the US
      - H8crilA 5y ago
        https://www.house.gov/the-house-explained/branches-of-government https://www.house.gov/the-house-explained/branches-of-govern...
  - mannerheim 5y ago
    I think GP has a misunderstanding involving the difference between 'government' in the American English sense versus in other countries[0]: > In the United States, "government" is considered to be divided into three branches; the legislature (the House of Representatives and the Senate) which makes law, the Administration (under the President) which runs sections of government within the law, and the Courts, which adjudicate on matters of the law. This is a much wider meaning of "government" than exists in other countries where the term "government" means the ruling political force of the prime minister and his/her cabinet ministers (what Americans would call the Administration). I believe usually in countries with a parliamentary system, the government refers specifically to the executive branch, and neither the legislature nor the judiciary. [0]: https://en.wiktionary.org/wiki/government#Usage_notes https://en.wiktionary.org/wiki/government#Usage_notes
differentView 5y ago
The CDC did what it thought was pragmatically the best thing to do considering the political reality at the time.
- giantg2 5y ago
  What's that, undermining rule of law and the integrity of the system? The road to hell is paved with good intentions.
- Fellshard 5y ago
  You don't 'pragmatically' step outside of your constitutionally and/or legally defined boundaries. That is definitionally not pragmatic.
  - jeffbee 5y ago
    But the CDC's emergency authority delegated to it by Congress is incredibly broad and puts almost no limits on their powers.
    - throwawayboise 5y ago
      If that's true then that's a problem. There are worse things than getting sick.
      - ruined 5y ago
        like what, revolutionary land reform? the eviction moratorium was implemented because the alternative was a good fraction of the population getting evicted on a very short timescale. the legal and police infrastructure to carry it out simply did not exist, and any attempt would have been overwhelmed with refusal and defensive organizing. any solution would have been problematic and disruptive to property rights. the CDC exceeding their authority just provided some realpolitik deniability for elected officials, and prevented open revolt.
      - vkou 5y ago
        If that's true, I disagree that it's a problem. Congress gave it this power, if you don't like it, vote for a different congress. > There are worse things than getting sick. Disease control codes are as old as law. We live in a society, and part of keeping society running is keeping it healthy.
bpodgursky 5y ago
I don't think this is an important point. There's no law allowing it. If the "government" wanted something enough, they could get a supermajority together in congress and amend the constitution to make literally anything legal. But they haven't, in this case, done so.
- ananonymoususer 5y ago
  You are forgetting about the (often ignored) Tenth Amendment.
  - bpodgursky 5y ago
    Congress could eliminate the tenth amendment anytime it had a supermajority... there's no clause in the constitution that cannot be amended.
    - ananonymoususer 5y ago
      I'm not sure such a proposal would fly. It would be overtly acknowledging the policy shift toward a federal power grab. There would be some resistance and perhaps even some re-balancing of federal/state powers in the end. As long as the Tenth is there, it is part of the constitution which all elected officials have sworn an oath to uphold.
    - flenserboy 5y ago
      Not by itself. It must go through the States via the ratification process. https://www.archives.gov/federal-register/constitution https://www.archives.gov/federal-register/constitution
threatofrain 5y ago
The language in the ruling also suggests it was the length of time which caused the court to believe the motivation had to do with financial policy more than public health policy. It is not that the CDC has no authority, just that they exceeded it.
ananonymoususer 5y ago
Any such move by Congress would also be challenged as an unconstitutional violation of the Fifth Amendment (Takings Clause).
- Meekro 5y ago
  There was also a rather creative argument based on the Third Amendment (quartering of troops), assuming at least some of the tenants were soldiers.
- urthor 5y ago
  It's also very difficult to justify under the commerce clause I imagine. That said, the US constitution is an interesting beast, because of the Supreme Court's very very progressive interpretation of the commerce clause. The Supreme Court has a very large amount of discretion in these things.

lakecresva 5y ago

This comment is somewhat disingenuous. The full text of the statutory provision (42 U.S.C. § 264) is : "The Surgeon General, with the approval of the Secretary, is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession. For purposes of carrying out and enforcing such regulations, the Surgeon General 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." While it's true that the majority wasn't willing to separate the first and second sentences, the decision was along party lines, and it just does not seem reasonable to me that a federal law intended to give the HHS "responsibility for preventing the introduction, transmission and spread of communicable diseases from foreign countries into the United States" would limit the authority granted in the section "Regulations to control communicable diseases" to nothing more than fumigation and pest control.

xyzzyz 5y ago
Why not? To what would Congress would limit the authority then, if not to what it explicitly says they are allowed to? I mean, there must be some limits on what CDC is allowed to do based on that statue, as it would be completely absurd to expect that Surgeon General gets all powers of federal government limited only by what “may be necessary in his judgment”. So, if there are some limits, why not understand those in terms of what that very section explicitly lists?
- lakecresva 5y ago
  > So, if there are some limits, why not understand those in terms of what that very section explicitly lists? Because the list ends with "and other measures, as in his judgment may be necessary.", and the text forces you believe that either a) the federal government intended to express a belief (in the same bill that officially gives the federal government quarantine authority) that disease could be contained via sanitation and pest control, or that b) they intended to give the Surgeon General a lot of latitude.

zzyzxxz 5y ago

One of the dissenting opinions (Sotomayor, I think?) stated that the CDC is allowed to do things like quarantines, and therefore something more benign like an eviction moratorium ought to be allowed too. I found that logic pretty convincing that the Trump-appointed justices were in the wrong. But, right and wrong don't really matter -- just winning.

SllX 5y ago
The CDC is allowed to do what is authorized by Congress within the limits of the Constitution. If that does not include eviction moratoriums but it does include quarantines, then it does not follow that because the CDC may quarantine people it may also issue a nation-wide eviction moratorium.