The Supreme Court last week rejected the idea that Congress gave the Centers for Disease Control and Prevention (CDC) the power to stop landlords from evicting tenants who fail to pay their rent. Unfazed by that setback, the Biden administration this week suggested that the CDC has the power to demand that every public school in the country force students to wear face masks.
Both incidents show how readily President Joe Biden deploys dubious legal arguments to defend unprecedented power grabs in the name of fighting COVID-19. If successful, those arguments would undermine federalism, the rule of law, and the separation of powers.
The CDC argued that evictions could promote COVID-19 transmission by forcing people to move into “congregate or shared living setting[s].” It said its moratorium therefore was authorized by a 1944 law that allows regulations deemed “necessary” to prevent the interstate spread of “communicable diseases.”
Like most of the federal judges who have addressed the issue, the Supreme Court did not buy that argument. “It is hard to see what measures this interpretation would place outside the CDC’s reach,” it noted, “and the Government has identified no limit…beyond the requirement that the CDC deem a measure ‘necessary.'”