You can now access my forthcoming article, “Nondelegation Limits to COVID Emergency Powers – Lessons From the Title 42 and Eviction Moratorium Cases”, on SSRN. The abstract is here:
The dangers associated with excessive delegation of emergency powers to executive branches agencies are highlighted by two legal disputes over Covid pandemic measures: the recent litigation regarding the Centers for Disease Control national eviction moratorium and the ongoing legal dispute over Title 42 expulsions from immigrants. Although the legal issues are superficially distinct, they raise many of the same questions. They both involve the exercise of power by exactly the same federal agency. It claims it was granted authority under successive provisions of the Public Health Service Act. Both measures were first adopted under the Trump Administration, and later continued—with some modifications—under the Biden Administration. They are both bipartisan and can be used to address problems that do not belong to any one party.
Both the policies could have been seriously challenged by the Constitution Nondelegation doctrine and related “major Question” doctrine. These weaknesses eventually resulted in the invalidation of evictions by the DC Circuit. This may also have led to partial invalidation for Title 42 expulsions. Finally, both policies were very harmful and did little to prevent the spread of the disease. These two policies were both enacted by executive officials despite doubts from health experts.
This article’s Part I provides an overview about the Title 42 and eviction moratorium policies and the subsequent litigation. Part II will explain the reasons why each policy violates constitutional nondelegation rules. Part III illustrates how they both run afoul – for similar reasons. The final part of the series, Part IV, outlines lessons to be learned from these cases. These cases strengthen the case against nondeferential, judicial review for emergency powers and delegations to executive agencies deemed competent. These cases also emphasize the importance of greater inter-ideological collaboration and dialog on these topics. Cross-ideological support is essential to ensure that emergency powers are not delegated or interpreted as political tools.
It is part of an NYU Journal of Law and LibertySymposium entitled “Responding in Emergency: A Blueprint to Liberty during a Time of Crisis” co-sponsored by Pacific Legal Foundation. Prof. Steve Vladeck (University of Texas) has posted his own contribution to the same symposium, which critically assesses the Supreme Court’s treatment of religious-liberty challenges to Covid-era public health restrictions.
NOTE: A previous amicus brief I authored in Title 42 was for Cato Institute. Although the Supreme Court did not rule on the August case, the plaintiffs in several lawsuits challenging the eviction moratorium are represented by Pacific Legal Foundation. My wife is not involved in these cases. PLF was assisted by me in this matter, but I played only a small (unpaid), role. My wife was not involved in the decision of PLF to invite me for this symposium.