The\u00a0Supreme Court last week rejected the idea that Congress gave the Centers for Disease Control and Prevention the power to stop landlords from evicting tenants \u2026<\/b>
\nThe Supreme Court last week rejected the idea that Congress gave the Centers for Disease Control and Prevention the power to stop landlords from evicting tenants who fail to pay rent. Unfazed by that setback, the Biden administration this week suggested that the CDC has the power to demand that every public school in the country force students to wear face masks. Both incidents show how readily President Biden deploys dubious legal arguments to defend unprecedented power grabs in the name of fighting COVID. If successful, those arguments would undermine federalism, the rule of law and the separation of powers. The CDC argued that evictions could promote COVID transmission by forcing people to move into \u201ccongregate or shared\u201d settings, citing a 1944 law that allows regulations deemed \u201cnecessary\u201d to prevent the interstate spread of \u201ccommunicable diseases.\u201d Like most of the federal judges who have addressed the issue, the Supremes didn\u2019t buy that argument. \u201cIt is hard to see what measures this interpretation would place outside the CDC\u2019s reach,\u201d the high court noted, \u201cand the government has identified no limit… beyond the requirement that the CDC deem a measure \u2018necessary.\u2019 \u201d The justices said it \u201cstrains credulity\u201d to assert that Congress gave the CDC that \u201cbreathtaking amount of authority.\u201d They said the statute\u2019s list of specific disease-control measures \u201cinforms the grant of authority by illustrating the kinds of measures that could be necessary: inspection, fumigation, disinfection, sanitation, pest extermination and destruction of contaminated animals and articles.\u201d Even if the statute were ambiguous, the court held, \u201cthe sheer scope of the CDC\u2019s claimed authority\u201d would \u201ccounsel against the government\u2019s interpretation,\u201d since \u201cwe expect Congress to speak clearly\u201d when it means to authorize powers of \u201cvast \u2018economic and political significance.\u2019 \u201d Notably, no one seems to have noticed the sweeping powers the CDC claimed to discover last fall until 76 years after the law was enacted. The Education Department cited a different, more recent law on Monday, when it announced investigations of five states that have \u00addefied the CDC\u2019s advice by forbidding mask mandates in public schools. Secretary of Education Miguel Cardona says those states may be violating Section 504 of the 1973 Rehabilitation Act, which prohibits discrimination against people with disabilities in federally funded programs. Cardona said his department had heard from \u201cparents of students with disabilities and with underlying medical conditions,\u201d who complained that \u201cstate bans on universal indoor masking are putting their children at risk and preventing them from accessing in-person learning equally.\u201d His argument implies that Section 504 makes the CDC\u2019s recommendations for schools mandatory. \u201cIt\u2019s massive federal overreaching,\u201d says Hans Bader, a former senior attorney at the Competitive Enterprise Institute, who also has worked in the Education Department\u2019s Office for Civil Rights. \u201cThe federal government essentially wants to dictate systemic changes to states\u2019 school policies because of speculation [about] how those policies may affect disabled students in particular school districts.\u201d Bader says Cardona\u2019s position is inconsistent with the relevant case law, which rejects discrimination claims based on speculative harms or parents\u2019 voluntary decisions. \u201cThe health benefits of wearing masks are so modest that European countries don\u2019t require young children to wear them,\u201d he says, \u201cso the failure to attend school is due to parental or student choice, not effectively compelled by school policy.\u201d Despite Cardona\u2019s emphasis on local autonomy, his interpretation of Section 504 suggests that school districts aren\u2019t free to reject CDC advice. Since the CDC has decided that mask mandates are appropriate, he seems to think, every public school in the United States is obligated to impose them. That is a remarkable assertion of federal supremacy in two areas \u2014 education and disease control \u2014 that have long been recognized as primarily the responsibility of state and local governments. The Biden administration seems determined to anoint the CDC\u2019s \u00addirector as the nation\u2019s COVID-19 dictator, no matter what the law says. Twitter: @JacobSullum<\/p>\n