Earlier this month, the Centers for Disease Control and Prevention (CDC) issued a document entitled “Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID-19.” Note that this is not an executive order. It does not even contain President Trump’s signature. But it was issued pursuant to the precise statutory authority that empowered Trump to impose a national quarantine and other public safety measures back in February—powers that he has refused to use, to the detriment of millions of Americans who fell sick and tens of thousands who died.
The so-called “agency order” also underscores the veritable mess that Trump has made of the principles of federalism—a once-hallowed tenet of conservative constitutional theory, under which sovereign power is carefully reserved to the states except in exceptional circumstances of national importance.
The CDC’s order is arguably flawed as a matter of policy, and possibly as a matter of law.
It states that, through December 31, 2020, “a landlord, owner of a residential property, or other person with a legal right to pursue eviction or possessory action, shall not evict any covered person from any residential property in any jurisdiction to which this Order applies.” The order doesn’t “relieve any individual of any obligation to pay rent.” Nor does it provide funding to landlords so they can make ends meet in the interim. And it doesn’t refer to any express authority from Congress that would allow an executive branch agency to enjoin evictions.
Rather, the CDC purports to have issued the order under Section 361 of the Public Health Service Act, a law that dates back to 1944 and authorizes “the Surgeon General, with the approval of the Secretary” of Health and Human Services, “to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession.” In this case, the HHS secretary passed this immense statutory authority on to one of its agencies, the CDC, which issued the order.
Here’s the rub. Under the Tenth Amendment to the Constitution, public health—like traditional police powers—is the responsibility of the states, not the federal government. The regulations implementing the 1944 statute nonetheless allow the feds to step in upon a finding that local efforts are “insufficient to prevent the spread of . . . communicable diseases.” In its order, the CDC underscores that “COVID-19 presents a historic threat to public health” and pronounces that, despite the “best efforts” of government, “COVID-19 continues to spread and further action is needed.”
Too little, too late.
Consider what the Trump administration didn’t do with its statutory powers. As early as January, President Trump didn’t heed the warnings of U.S. national security officials that the coronavirus was a serious global threat. Instead, he repeatedly praised China’s handling of the virus before eventually imposing a limited ban on travel from China on January 31, when the U.S. cases were still in the “single digits.” On February 4, the Food and Drug Administration issued an emergency use authorization for a CDC coronavirus test, but instead of preparing to test Americans on the massive scale that was required in order to contain the virus, the CDC issued very narrow guidance recommending testing only for those who recently traveled to China’s Wuhan province or were in contact with an infected person.
On February 11, there were only 11 cases in the United States. By the end of March, confirmed cases in the United States surged past 100,000.
By February 16, the United States was conducting approximately 2.4 tests per million people. South Korea—which recorded its first case on the very same day as the United States—was by then administering 154.7 test per million people. In June, HHS announced that it was planning to end federal funding for coronavirus testing sites by the end of the month. As of this writing, there have been more than 6.5 million confirmed coronavirus cases in the United States and nearly 200,000 deaths.
Of course, the testing failures are only the beginning of Trump’s colossal COVID malfeasance. He did not manage the national supply chain for personal protective equipment (PPE) and medical supplies—prompting Democratic senators to demand an investigation into reports that federal officials were seizing supplies as “political favoritism, cronyism, and price-gouging via third-party sellers.” By July, Trump was urging states to reopen while the country was reporting over 60,000 new cases a day. On September 1, the Federal Emergency Management Agency announced it would halt funding for cloth face masks and other PPE in public schools, public housing, and courthouses.
The principles of federalism recognize that states have rights—that’s why, among other things, we have 50-plus election systems in this country and an Electoral College that can decide the presidency contrary to the national popular vote tally—but, as I argued back in May, if there were ever a time for a president to invoke his statutory powers to protect the public at large, this is it. Trump didn’t do it.
Rather than invoke the Public Health Service Act to fight COVID-19 when there was still time to save tens of thousands of lives, Trump left states to fend for themselves. And now, his administration is invoking that authority—but for the purpose of fighting evictions, many of which are a terrible economic consequence of the administration’s disastrous handling of the crisis.
Meanwhile, this president has trampled on states’ and municipalities’ rights to police the streets and maintain order in the midst of local riots. The federal government does not have “police power” outside of federal property or federal territories like Washington, D.C. When Trump sent federal law enforcement to police federal courthouses in Portland, Oregon, he was on solid constitutional ground. But Trump’s invocation of “Operation LeGend” to send federal law enforcement to places like Chicago, Albuquerque, and Kansas City—over local governments’ objections—was a horrifying assault on federalism. His recent (and likely empty) threat to cut federal funding to Democrat-run cities allegedly marked by “anarchy, violence, and destruction” demolishes respect for federalism altogether, ushering in an era of exclusively red-versus-blue politics that disregards institutional, legal, and historical norms.
The CDC’s order finally invokes the Public Health Services Act. But instead of protecting the public’s health against a disease that ignores state borders, the order operates as a painful reminder of this president’s catastrophic failures and abuses to date, and a rallying cry to future Congresses of the need for legislation to ensure that the next “worst of the worst” president cannot manage to destroy what generations of Americans have fought so hard to build.