Earlier this month, Texas Attorney General Ken Paxton filed a lawsuit seeking to enjoin the federal public transportation mask mandate, which remains in place on planes, trains, buses, subways, and other public conveyances, as well as at airports and stations. Relying on the Supreme Court’s ruling in Alabama Association of Realtors v. HHS and related lower court rulings, which enjoined the eviction moratorium issued by the Centers for Disease Control and Prevention (CDC), Texas argues that CDC’s transit mask order exceeds the agency’s authority under Section 361 of the Public Health Service Act of 1944. In the alternative, Texas argues that Section 361’s broad authorization to adopt “other measures” deemed “necessary” to prevent interstate disease spread violates the nondelegation doctrine. Courts should reject this challenge on both grounds and clarify that evidence-based measures that directly relate to preventing interstate disease spread are authorized. Courts need to get these cases right so that federal health officials will have the capacity to mitigate the next wave—and the next pandemic.
CDC’s Section 361 Authority
Section 361 authorizes federal regulations “to prevent the introduction, transmission, or spread of communicable diseases” from foreign countries or across state or territorial borders. Congress delegated some powers in this section in specific terms and others more broadly. The first sentence of Subsection 361(a) is broad: federal health officials are “authorized to make and enforce such regulations as in [their] judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases” across national or state borders. The second sentence then provides a non-exhaustive list of specific measures authorized by the first: “For purposes of carrying out and enforcing such regulations, the [CDC Director] may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in [their] judgment may be necessary.” Subsections 361(b) through (d) impose additional limits when Section 361(a) powers are used to apprehend, detain, examine, or conditionally release individuals.
CDC Actions and Challenges
CDC has relied on Section 361 to suspend cruise ship operation, pause residential evictions, and require face masks on public transit. Courts have ruled that the first two types of orders probably exceeded CDC’s statutory authority. Only the transit mask order is left standing.
In March 2020, CDC used its Section 361 authority to suspend cruise ship sailings, and in October 2020 issued a new order requiring a prolonged research and certification process before cruises could resume. Florida challenged these procedures and a district court granted a preliminary injunction, finding that CDC’s order likely exceeded its statutory authority, and that if it did not, then the statute likely violated the nondelegation doctrine. The Eleventh Circuit ultimately agreed and let the injunction stand.
CDC relied on Section 361 to issue its first eviction moratorium order in September 2020, after a narrower moratorium enacted by Congress expired. CDC’s order was subsequently extended once by Congress, then three more times by CDC. A flurry of legal challenges were filed against CDC’s moratorium, and some courts refused to enjoin it while others found it unlawful. The Supreme Court at first allowed CDC’s moratorium to stay in place through its July 31, 2021 expiration date without deciding whether CDC had statutory authority. But when the Biden Administration then issued a narrower extension, the Supreme Court in Alabama Realtors stepped in to prevent it from being enforced. The Court, per curiam, invoked the text of Section 361 and the major questions canon of statutory interpretation to find that the government’s broad read of the statute was probably unsupportable.
Under President Biden’s direction, CDC issued an order under Section 361 in January 2021 to require workers and passengers to wear face masks on shared conveyances and in transportation hubs. To establish a nexus to interstate spread, CDC emphasized that “passengers who may themselves be traveling only within their state or territory commonly interact with others traveling between states or territories or internationally.” Even when CDC has loosened its voluntary guidance on mask-wearing (as it did in the summer of 2021 and again last week) it has left its transit mask order in place.
The transit mask order remains in effect as of this writing, but it, too, now faces legal challenges. There are subtle but critical distinctions between the Supreme Court’s reasoning in Alabama Realtors and the lower courts’ reasoning in the eviction moratorium and cruise ship cases. To preserve CDC’s authority to fill gaps in state and local pandemic prevention and response (as Congress intended in 1944), it will be crucial for courts reviewing the transit mask order to parse these distinctions carefully.
Texas’s First Argument: The Transit Mask Order Exceeds CDC’s Statutory Authority
Texas first argues that the transit mask order exceeds CDC’s Section 361 authority, in particular because CDC’s interpretation “does not take into account the limiting language found in the subsection.” Lower court judges should reject this argument and read the Supreme Court’s statutory analysis in Alabama Realtors to spare CDC’s transit mask order.
Some lower courts have read the examples listed in Section 361 (inspection, fumigation, and destruction of animals and articles in subsection (a) and apprehension, examination, detention, and conditional release of individuals in subsections (b)-(d)) to indicate that CDC’s powers are limited to measures that target specific animals, articles, or individuals based on particular risks. But the Supreme Court rejected this extremely narrow interpretation of Section 361 in Alabama Realtors. Instead, the Court adopted a more flexible “directness/remoteness” test for determining which measures have a sufficient nexus to the interstate spread of disease to be authorized—analogous to the test used by some courts to assess proximate causation in torts:
These measures [the examples listed in Section 361] directly relate to preventing the interstate spread of disease by identifying, isolating, and destroying the disease itself. The CDC’s moratorium, on the other hand, relates to interstate infection far more indirectly: If evictions occur, some subset of tenants might move from one State to another, and some subset of that group might do so while infected with COVID–19
Alabama Realtors’ directness tests affords somewhat broader (but not unlimited) discretion to CDC than the lower court rulings did. Face mask requirements for transit workers and travelers do not target specific people based on individualized risk assessments (as some lower courts’ reasoning would require). But they do “directly relate to preventing the interstate spread of disease by … isolating … the disease itself.” The causal link between wearing a face mask and viral transmission is more direct—with fewer intervening forces—than for evictions. This direct causal nexus makes the transit mask order similar to the measures specifically listed in Section 361 in a way that the CDC eviction moratorium was not.
Texas’s Second Argument: Section 361 Violates Nondelegation Principles
Texas argues in the alternative that Section 361 “does not provide adequate boundaries that meaningfully constrain [CDC’s] authority,” and that the statute therefore “constitutes an unconstitutional delegation of legislative power to the CDC.” But in Alabama Realtors, the majority did not rely quite so directly on the nondelegation doctrine.
Some lower court judges reasoned that the broader reading of Section 361(a) that the government defendants advocated for (which they characterized as imposing “virtually no restraint” on the agency’s authority) would improperly delegate legislative power to the executive branch. Thus, they invoked the canon of constitutional avoidance to read Section 361(a) narrowly. Alabama Realtors does not support this approach.
The majority did refer obliquely to the major questions doctrine, a separate but related doctrine requiring “Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.” But requiring face coverings on transit does not have the “vast economic and political significance” of the eviction moratorium. Nor does it “alter the federal-state framework” by intruding into a matter of traditional state concern, such as landlord-tenant law.
Section 361(a)’s public health “necessity” standard has a long pedigree in federal, state, and local public health statutes. Most state legislatures have granted broadly delineated discretion to health officials to take measures they deem necessary (in the sense of being evidence-based) to control the spread of communicable diseases. Indeed, the state public health law upheld by the Supreme Court in Jacobson v. Massachusetts in 1905 empowered local health boards to make smallpox vaccination compulsory based exclusively on a finding that it was “necessary for the public health or the public safety.”
The Jacobson Court endorsed a legislature’s reliance on the scientific findings of experts to constrain broad communicable disease control powers. Reasoning that “[t]he authority to determine for all what ought to be done in … an emergency must [be] lodged somewhere or in some body,” the Court approved the legislature’s choice “to refer that question, in the first instance, to a board of health composed of persons … appointed … because of their fitness to determine such questions.” Prudent lawmakers recognize that epidemics may require novel interventions in response to threats that cannot be foreseen with specificity. Section 361(a)’s necessity standard requires an evidence-based nexus to the spread of communicable disease across state and territorial borders. That is a constitutionally sufficient intelligible principle to constrain federal officials.
Uncertainty about the scope of CDC’s regulatory authority in the wake of the eviction moratorium and cruise ship cases is particularly concerning given the limitations of other government actors. State governments lack comprehensive authority over interstate commerce and travel. And Congress has not demonstrated capacity for the swift responses and nimble adjustments required to prevent or manage a pandemic.
The Texas complaint is the first to be filed by a heavyweight litigant challenging CDC’s transit mask order. The case has been assigned to Judge Reed O’Connor, who has a reputation for rulings that sharply limit federal power. Even if CDC rescinds the transit mask order (which is possible given mounting political pressure), Judge O’Connor may easily find that the order could be reinstated and therefore that the case is not moot. Similar cases filed in Florida by lower-profile litigants could also be decided soon, potentially creating a split between the Fifth and Eleventh Circuits.
Ultimately, the transit mask mandate cases provide an important opportunity for courts to clarify that evidence-based measures that directly relate to preventing interstate disease spread are authorized by Section 361. Getting these cases right—even as the most recent wave recedes—is crucial for shoring up capacity to mitigate the next wave or prevent the next pandemic.