It often feels that Congress can regulate our every move—from the salaries employers must pay, to the surgeries doctors must perform. Which is why last week’s victory for federalism and for freedom deserves celebration. On February 25th, a federal court in Texas held unconstitutional a policy from the Centers for Disease Control and Prevention (CDC) banning evictions during COVID-19. The eviction moratorium had its policy problems: conservatives worried that the policy would dissuade landlords from spending money to construct or update buildings; progressives wanted the regulation to go further, eliminating a renter’s accrued debt as well.
The decision is beautiful for more than its outcome.
First, some context. Our Constitution limits Congress’s powers to only those specifically listed. And the list of powers is pretty detailed—establish post offices, coin money, fund an army, etc.—but there’s a catch-all at the end. Congress has authority to make laws “necessary and proper” to carry out its list of powers. That, combined with Congress’s power to “regulate Commerce” among the states, has led to Congress imposing itself in our daily lives. The courts rarely step in to limit Congress’s power under the “Commerce Clause,” and so every year, Congress sprawls larger and larger.
Second, the CDC order. A rarely-used law gives CDC the power to prevent the “spread of communicable disease” from state to state. This power includes “fumigation, disinfection, sanitation,” and “other measures” necessary. Using this authority, CDC under the Trump Administration, frustrated by Congress’s failure to pause evictions, said: evictions can exacerbate the spread of communicable disease from state to state, so evictions are hereby banned.
That is wildly scary when you think about it. If the CDC can make any regulation (nationwide!) in the name of potentially slowing a virus, the CDC has too much power. As the district judge pointed out, the CDC could under its theory prevent you from getting married, or getting divorced, which causes ten times as many moves as do evictions.
The court, in striking down the eviction moratorium, could have said that the policy stretched the statute too far, meaning CDC can only take actions like fumigation, disinfection, and sanitation, like the law says. Instead, the court discussed something more fundamental—under the Commerce Clause, the agency actually has to be regulating commerce. What a thought! This is especially so when the agency is stepping into areas traditionally regulated by the states. Makes you wonder, what is the constitutional hook for the CDC itself? What “interstate commerce” need could possibly justify Anthony Fauci’s salary?
Regardless of what happens on appeal and beyond, the Texas court’s inquiry was exactly the right one. We cannot take as a given Congress’s authority to regulate at will—we must demand that Congress have a constitutional hook, and a real one, before inserting itself in our lives.