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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

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.
AmericanChopper 5y ago
The CDC’s interpretation puts the law in contention with the 5th amendment. It’s a lot more reasonable for SCOTUS to rule that the CDC exceeded the law than it is to evaluate the constitutionality of the law based upon the CDC’s new interpretation.
- lakecresva 5y ago
  Asked and answered by the Supreme Court a hundred years ago in Home Building & Loan Ass'n v. Blaisdell. In times of emergency (in that case it was the depression), the federal government can delay the repayment of debts without running afoul of the contracts clause or the fifth amendment.
  - AmericanChopper 5y ago
    There’s some significant differences between that case law, and this situation. The mortgagee in that case applied to the court for relief, and had to make ongoing payments during the period that relief was granted. The relief did not put the creditor at a substantial risk of bankruptcy. If the regulation was tested, I think it would have survived the constitution. But I don’t think all of the conditions of it would. I’m skeptical that the criteria for qualifying, and the process for applying would have passed, and I think SCOTUS would probably expect more clarity on the obligations of applicants (ie around partial payments). The constitution still exists during an emergency, and there’s still a bar that must be met when infringing upon the rights it grants. But SCOTUS tends to avoid ruling on the constitutionality of a law in cases where the simpler explanation is that the law was not appropriately applied.
    - lakecresva 5y ago
      > The mortgagee in that case applied to the court for relief, and had to make ongoing payments during the period that relief was granted. The relief did not put the creditor at a substantial risk of bankruptcy. I'm not sure how these are related to due process and the fifth amendment so I don't see how they would distinguish the two cases. Under the CDC moratorium eviction, tenants still needed to show the appropriate degree of financial hardship. > But SCOTUS tends to avoid ruling on the constitutionality of a law in cases where the simpler explanation is that the law was not appropriately applied. They're not arguing about that, because to do so would require something resembling a consensus on what the actual law is. They're arguing about statutory interpretation. The main thread of the dissent in Alabama Assn. of Realtors was that "[T]o make and enforce such regulations as in [its] judgment are necessary to prevent the introduction, trans-mission, or spread of communicable diseases [inter-state]." means exactly what it says.
urthor 5y ago
Yes, but a liberal interpretation of "and other measures, as in his judgment may be necessary" would imply unlimited executive power for the Surgeon General. The US Congress can't just delete every single authority of the legislative and executive branch to the Surgeon General, a single sentence about "and other measures" cannot allow a Surgeon General to assume complete power. This is where judicial interpretation comes into play with these laws. Congress writes bad laws sometimes.

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.

AmericanChopper 5y ago

The CDC’s interpretation puts the law in contention with the 5th amendment. It’s a lot more reasonable for SCOTUS to rule that the CDC exceeded the law than it is to evaluate the constitutionality of the law based upon the CDC’s new interpretation.

lakecresva 5y ago
Asked and answered by the Supreme Court a hundred years ago in Home Building & Loan Ass'n v. Blaisdell. In times of emergency (in that case it was the depression), the federal government can delay the repayment of debts without running afoul of the contracts clause or the fifth amendment.
- AmericanChopper 5y ago
  There’s some significant differences between that case law, and this situation. The mortgagee in that case applied to the court for relief, and had to make ongoing payments during the period that relief was granted. The relief did not put the creditor at a substantial risk of bankruptcy. If the regulation was tested, I think it would have survived the constitution. But I don’t think all of the conditions of it would. I’m skeptical that the criteria for qualifying, and the process for applying would have passed, and I think SCOTUS would probably expect more clarity on the obligations of applicants (ie around partial payments). The constitution still exists during an emergency, and there’s still a bar that must be met when infringing upon the rights it grants. But SCOTUS tends to avoid ruling on the constitutionality of a law in cases where the simpler explanation is that the law was not appropriately applied.
  - lakecresva 5y ago
    > The mortgagee in that case applied to the court for relief, and had to make ongoing payments during the period that relief was granted. The relief did not put the creditor at a substantial risk of bankruptcy. I'm not sure how these are related to due process and the fifth amendment so I don't see how they would distinguish the two cases. Under the CDC moratorium eviction, tenants still needed to show the appropriate degree of financial hardship. > But SCOTUS tends to avoid ruling on the constitutionality of a law in cases where the simpler explanation is that the law was not appropriately applied. They're not arguing about that, because to do so would require something resembling a consensus on what the actual law is. They're arguing about statutory interpretation. The main thread of the dissent in Alabama Assn. of Realtors was that "[T]o make and enforce such regulations as in [its] judgment are necessary to prevent the introduction, trans-mission, or spread of communicable diseases [inter-state]." means exactly what it says.

urthor 5y ago

Yes, but a liberal interpretation of "and other measures, as in his judgment may be necessary" would imply unlimited executive power for the Surgeon General. The US Congress can't just delete every single authority of the legislative and executive branch to the Surgeon General, a single sentence about "and other measures" cannot allow a Surgeon General to assume complete power. This is where judicial interpretation comes into play with these laws. Congress writes bad laws sometimes.