President Joe Biden this week implored Americans to "please get vaccinated now" against COVID-19, saying "it's a patriotic thing to do." The New York Times reports that "top health experts say that it is simply not enough." Biden's critics think "the president needs to take the potentially unpopular step of encouraging states, employers and colleges and universities to require vaccinations to slow the spread of the coronavirus."

Notably missing from that list of suggestions: an executive order telling the Centers for Disease Control and Prevention (CDC) to consider imposing a nationwide vaccine mandate. According to the argument that the Biden administration has deployed in defense of the CDC's nationwide eviction moratorium, such a mandate is within the agency's statutory power. Yet the Times says "Mr. Biden's options to be more aggressive are limited." Even if he were inclined to unilaterally require vaccination, according to the Times, he does not have the authority to do so. "For the most part," it explains, "the power lies in the hands of states, employers or private institutions."

Prior to last September, when the CDC first ordered landlords to continue housing tenants who claim they cannot afford to pay their rent, that gloss would have been uncontroversial. But the eviction moratorium, which the CDC recently extended until the end of July, is based on a reading of the Public Health Service Act that could easily encompass a vaccine mandate.

That law authorizes the secretary of health and human services to "make and enforce such regulations as in his judgment are necessary" to prevent the interstate spread of "communicable diseases." A regulation delegates that authority to the CDC, which argues that it justifies overriding rental contracts across the country, because evicted tenants might become homeless or move in with other people, thereby increasing the risk of virus transmission. The Biden administration has endorsed that position while defending the moratorium against challenges by landlords and property managers.

According to the Department of Health and Human Services (HHS), U.S. District Judge Dabney Friedrich noted in a May 5 decision that rejected its interpretation of the law, "Congress granted the Secretary the 'broad authority to make and enforce' any regulations that 'in his judgment are necessary to prevent the spread of disease' across states or from foreign countries." If the indirect and disputed relationship between evictions and COVID-19 transmission was enough to justify the CDC's moratorium, the direct and indisputable relationship between inoculation and disease control surely would be enough to justify a CDC order requiring vaccination.

The plaintiffs in the case that Friedrich heard, Alabama Association of Realtors v. HHS, made that point when they asked the Supreme Court to lift a stay on her order blocking enforcement of the eviction moratorium. The CDC, they noted, believes the Public Health Service Act "bestowed upon it the unqualified power to take any measure imaginable to stop the spread of communicable disease—whether eviction moratoria, worship limits, nationwide lockdowns, school closures, or vaccine mandates." In its response, the Biden administration said the Court "need not consider whether [the statute] would authorize" measures "such as 'vaccine mandates.'" But given the vast authority claimed by the CDC, that possibility is completely plausible and definitely worth considering.

Last August, then-President Donald Trump issued an executive order that told the CDC to "consider whether any measures temporarily halting residential evictions of any tenants for failure to pay rent are reasonably necessary to prevent the further spread of COVID-19 from one State or possession into any other State or possession." The CDC did consider it, and the result was its September 4 order requiring a "temporary halt in residential evictions to prevent the further spread of COVID-19." By the same logic, Biden could issue an executive order telling the CDC to consider whether a federal vaccine mandate is "reasonably necessary to prevent the further spread of COVID-19."

Biden has not issued such an order, and it seems unlikely that he will—not just because of the political ramifications, but also because he has implicitly conceded that the CDC does not have the sweeping power his administration claims it does. During his campaign, you may recall, Biden repeatedly promised that, if elected, he would require all Americans to wear face masks in public places. But two months before the election, supposedly after consulting with "our legal team," Biden admitted that the president does not have that power.

On January 21, Biden issued executive orders that resulted in face mask requirements on federal property and in transportation systems, including airports and commercial aircraft. He did not tell the CDC to consider a general face mask mandate, even though the interpretation of the Public Health Service Act that his administration has been defending in court would authorize such a policy.

There are sound reasons to doubt that the CDC actually has the power to require vaccination, starting with the fact that it has never done so. In fact, HHS conceded that the CDC's authority under the Public Health Service Act "has never been used to implement a temporary eviction moratorium" and "has rarely [been] utilized…for disease-control purposes." Given this history, the plaintiffs in Alabama Association of Realtors argue, "the government's recent claim 'to discover in a long-extant statute an unheralded power to regulate a significant portion of the American economy' should be greeted with a healthy 'measure of skepticism.'"

The statute itself provides additional reasons for skepticism. Immediately after authorizing disease control measures, it mentions these examples: "inspection, fumigation, disinfection, sanitation, pest extermination," and destruction of infected or contaminated "animals or articles." It then refers to "other measures" deemed "necessary." According to the CDC, that phrase encompasses pretty much anything plausibly related to disease control. But according to Friedrich, two other federal judges, and the U.S. Court of Appeals for the 6th Circuit, "other measures" in this context refers to policies similar in kind to the specific examples, which an eviction moratorium is not.

The Public Health Service Act goes on to authorize quarantine of disease carriers and "examination of persons reasonably believed to be infected." Under the CDC's interpretation, those paragraphs, like the earlier list of disease control measures, are gratuitous and inconsequential. If the CDC is right, Congress might as well have stopped after the first sentence of this section, which authorizes regulations to prevent the interstate spread of contagious diseases. But the fact that Congress did not stop there suggests it did not mean to give the CDC the broad power the agency is claiming.

"A broad construction of this authority may permit CDC to issue regulations requiring vaccination in circumstances that would prevent the foreign or interstate transmission of COVID-19," the Congressional Research Service notes in an April 2021 report. But it adds that the references to specific disease control policies "could suggest a narrower reading…that limits the authority to issue 'necessary' regulations to measures related to quarantine or other similar public health measures."

While Friedrich favored that "narrower reading," the U.S. Court of Appeals for the D.C. Circuit disagreed. When it declined to lift the stay on Friedrich's order, it said "the CDC's eviction moratorium falls within the plain text" of the Public Health Service Act.

Although the Supreme Court declined to intervene, four justices dissented, and Justice Brett Kavanaugh wrote a concurring statement saying Friedrich was right that the CDC "exceeded its existing statutory authority by issuing a nationwide eviction moratorium." Kavanaugh was not yet prepared to enforce the rule of law, but he warned that he might change his mind if the CDC extended the moratorium again, which the CDC has said it does not plan to do.

Here is how the situation stands: The Biden administration maintains that the CDC has virtually unlimited authority to control communicable diseases, while the president himself seems to think that authority somehow does not extend to mandating face masks or vaccination. And although at least five justices seem to think the CDC does not have the power it claims, the Supreme Court nevertheless left the eviction moratorium in place. Despite all the debate about what the law actually says, it ultimately did not matter.

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