Infringing on the nondelegation doctrine, the government would have made the statute inconstitutional by interpreting the CDC’s power. The Supreme Court explained recently (Gundy v. United States, 2019), that principle of separation of powers holds that “Congress … may not transfer to another branch ‘powers which are strictly and exclusively legislative.'”
While Congress can give executive branch officials a wide range of discretion, it The latter is exactly what the CDC would enjoy if the government prevails in this case: It would have the power to exclude or deport virtually any entrants into the United States at any time.
Section 265 gives the CDC “the power to prohibit… the introduction of persons and property from such countries or places as he shall designate” whenever the agency “determines that by reason of the existence of any communicable disease in a foreign country there is serious danger of the introduction of such disease into the United States.” It would be illegal for Congress to grant the CDC the power to ban or deport immigrants from the countries it designs.
By contrast, there would be no such nondelegation issue if the term “introduction” were limited to situations where the entry of persons from the country in question could result in the spread of a disease not already prevalent in the United States. It is possible to avoid the problem if D.C. Circuit adopts
Similar reasons are given by the CDC for the CDC’s position. It also violates the principle that courts cannot assume Congress has delegated power to executive to resolve “major” questions of public policy unless Congress clearly indicates its intention to do so.
The Supreme Court recently reaffirmed this vital rule in blocking another Covid‐related CDC action, the eviction moratorium. This is In Alabama Association of Realtors against HHSThe Court rejected claims by the CDC that another provision under the Public Health Service Act allowed it to have an essentially unrestricted power to regulate residential housing. The Court found that even if the text was unclear, the sheer extent of Section 361(a), which the CDC claimed to have authority over the Government would support the Government’s interpretation.
This is the exact same error made by the same agency. Rather than heed the admonition that Congress “does not … hide elephants in mouseholes,” (Whitman v. American Trucking, 2001),the CDC has tried to squeeze yet another pachyderm into a narrow provision of the Public Health Service Act.
There are few bigger elephants than near‐total control over entry into the United States. D.C. Circuit should uphold the appeal against the expulsions. A policy started under Trump and largely maintained under President Biden.