Best of Open Health: Section 361, CDC Overreach, and Congress

Congress should investigate the CDC's misuse of a nearly 80-year-old law to justify an unprecedented expansion of its authority.

With seasonal viruses circulating rapidly again, it’s a good time to reexamine the arguments made by Bobbi Herzberg and Tad DeHaven about COVID failures and the need for reform in the public health establishment.

Photo Credit: Edward Jenner

Centers for Disease Control and Prevention (CDC) Director Rochelle Walensky recently made headlines for admitting the agency’s performance during the Covid-19 pandemic “did not reliably meet expectations.” Walensky says she wants a “new, public health action-oriented culture at the CDC that emphasizes accountability, collaboration, communication, and timeliness.” While her honesty is welcome, merely tinkering with the bureaucracy falls short.

In a new Mercatus Center policy brief, we contend that the CDC’s recent unilateral imposition of a nationwide eviction moratorium to reduce the spread of Covid-19 was an alarming attempt to grant unto itself power that the agency does not – and should not – possess. Citing section 361(a) of the 1944 Public Health Service Act (PHSA), the CDC claimed the authority to abrogate private contracts between property owners and tenants. While the Supreme Court ultimately determined that the agency had overstepped its bounds, the attempt suggests a willingness to veer beyond its traditional scope of authority.

The latter half of the 19th century saw the beginning of a shift in responsibility for communicable disease prevention and containment from the states to the federal government, which culminated in the 1944 PHSA. Nonetheless, the states retain the authority to establish public health and safety laws via their police powers. Eviction moratoriums are one of those state powers.

In the decades following the enactment of the PHSA, federal quarantine and preventive efforts were relaxed as medical advances and vaccines mitigated the spread of communicable diseases. Invocation of section 361 has been infrequent and even during their initial response to Covid-19, the CDC was relatively restrained. With notable exceptions, the federal government has played a largely supportive role to the states.

Congress included a relatively narrow eviction moratorium in its initial legislative response to Covid-19, the Coronavirus Aid, Relief, and Economic Security (CARES) Act. When Congress chose not to extend the moratorium, the CDC cited section 361 to unilaterally impose and repeatedly extend a more expansive moratorium. The Congressional Research Service called the CDC’s actions “unprecedented, both in terms of the breadth of the agency’s use of this public health authority and its reach into what is traditionally state and local governance of landlord-tenant law.” The Supreme Court agreed, noting that “the Government’s read of §361(a) would give the CDC a breathtaking amount of authority,” and added that “it is hard to see what measures this interpretation would place outside the CDC’s reach.”

The CDC’s actions undermined federalism by encroaching on powers and responsibilities reserved to the states, and it empowered unelected federal health officials to issue dictates on matters beyond the CDC’s scope of authoritative expertise. The beauty of American federalism is that it allows states to take various approaches to complicated policy matters that reflect their different economic, political, and social preferences and to learn from each other.

As Walensky admitted, the CDC didn’t do an adequate job just handling its core responsibilities, including a failure to provide clear, accurate information to the public and botching Covid-19 test development. The agency failed to appreciate the tradeoffs to its recommended mitigation policies such as the societal toll that school closures took on student mental health and learning, the spike in substance abuse encouraged by lockdowns, and the enormous economic losses suffered by workers and businesses, including landlords hurt by the CDC’s eviction moratorium.

We conclude the brief with three recommendations. First, congressional oversight committees should thoroughly evaluate the CDC’s actions to understand how and why the agency used a nearly 80-year-old law to justify a breathtaking expansion of its authority. When Supreme Court Justice Kavanaugh initially allowed the eviction moratorium to remain in place only because it was soon set to expire anyhow, he warned the CDC that Congress would have to explicitly authorize any further extensions. The CDC promptly thumbed its nose at Kavanaugh and unilaterally extended the moratorium again. That indicates a cultural issue at CDC that a congressional investigation would ideally shed light on.

Second, Congress should consider tightening section 361’s language to lessen any future ambiguities. Although it would be premature to suggest specific language before Congress has conducted oversight, the goal should be to incorporate stronger safeguards against future overreach. Options for policymakers to consider would be a full cost-benefit analysis before a temporary action can be extended and ensuring that the various parties impacted by a policy involving major questions are incorporated into the deliberations. In the case of the eviction moratorium, the views of landlords, tenants, housing finance representatives, state officials, and other affected parties would have been included.

Finally, the impact of federal and state Covid-19 policies on the future of US federalism should be analyzed and assessed by Congress to reduce further erosion. The CDC’s eviction moratorium represented a broad incursion by the federal government into what has long been considered state territory. In his seminal work, Crisis and Leviathan, economist Robert Higgs detailed the federal government’s history of using emergencies to justify a temporary expansion of power that it doesn’t fully relinquish after the emergency has passed. The Supreme Court may have put a stop to the CDC’s eviction moratorium, but a future Court could be more accommodating. The states should have a prominent seat at the decision-making table from the outset, as they generally have a better understanding of the impact on the ground.

Read more here: Congress and CDC Overreach (September 2022, Mercatus Center at George Mason University)