Every now and then the courts do tell the executive branch when it strays outside the job description Congress gave it. The Sixth Circuit federal court of appeals did just that when it told the Center for Disease Control and Prevention (the CDC) it couldn’t continue its moratorium on evictions after the authority Congress gave it for the moratorium expired. What does this have to do with space law? Lots.
Space regulators such as the FAA, FCC, and NOAA get their authority to tell space operators what to do from Congress. It is a basic principle of law that if Congress didn’t give an agency a job, the agency doesn’t get to do it. The FAA, for example, doesn’t get to regulate the meat packing industry. If the FAA wants to regulate one of your clients on orbit–which is outside the FAA’s jurisdiction–you will be glad to know about this case.
Surely, you object, no agency in the United States would try to exceed its authority. Allow me to refer you to the FCC’s efforts to require insurance or indemnification of the U.S. government. See as well the FAA’s efforts to regulate payload encryption.
In Tiger Lily v HUD, the Sixth Circuit agreed with the lower court that the CDC’s ban on residential evictions was unlawful. In March of 2020, Congress passed the Coronavirus Aid, Relief, and Economic Security Act. Among other things, the CARES Act established a 120–day moratorium on evictions from rental properties that participated in federal assistance programs or had federally backed loans. When the Congressional moratorium ended, the CDC issued an order halting residential evictions to prevent COVID’s spread. The CDC Order imposed a broader eviction moratorium than Congress had, and prohibited eviction of all “covered persons”—regardless of whether the rental property relied on federal funds or loans—through December 31, 2020. According to the CDC , its order was necessary to facilitate self–isolation, support state lockdown orders, and prevent congregation in settings like homeless shelters.
The CDC tried to argue that Congress gave it the authority to do this. As the court described the CDC’s position:
The CDC found authority for its entry into the landlord–tenant relationship in the Public Health Service Act of 1944, which authorizes the Secretary of Health and Human Services1 to “make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases.” 42 U.S.C. § 264(a). To carry out and enforce “such regulations,” the Secretary can “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 his judgment may be necessary.” Id.
[footnotes omitted][emphasis added].
After Congress allowed the moratorium to lapse, owners and managers of rental properties sued over the CDC’s repeated extensions of the moratorium on its own. The plaintiffs argued that the CDC’s moratorium exceeded the government’s statutory grant of power, and violated the Constitution and the Administrative Procedure Act.
The court applied traditional rules of statutory construction (meaning the usual rules of logic for figuring out what a law means) to find that the CDC had claimed more power than the law gave it. The court also, however, observed that
Congress would “speak clearly if it wish[ed] to assign to an agency decisions of vast economic and political significance,” like the decision to shut down evictions across the entire country. Utility Air Regul. Grp. v. EPA., 573 U.S. 302, 324 (2014) (plurality opinion) (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 160 (2000)). There is no clear expression of congressional intent in § 264 to convey such an expansive grant of agency power, and we will not infer one. See Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001) (“Congress . . . does not, one might say, hide elephants in mouseholes.”); see also Alabama Ass’n of Realtors v. Dep’t of Health & Hum. Servs., 141 S. Ct. 2320 (2021) (Kavanaugh, J., concurring) (citing the major–questions doctrine in determining that the CDC “exceeded its existing statutory authority by issuing a nationwide eviction moratorium”).
This should be a reminder to all agencies with broadly worded grants of power–like, for example, the FCC’s “public interest” standard–that the “public interest” mousehole does not give an agency authority over matters unrelated to radio frequencies. If it did, the FCC could require anyone listening to the radio to fasten her seat belt (that’s in the public interest), eat his broccoli (also in the public interest), buy insurance, or indemnify the U.S. government for damage caused by a space object.
How to read open-ended vague words like “other measures.” Interestingly, the CDC did not argue that the statutory enforcement authorities’ inclusion of the vaguely worded “other measures” could include evictions. Regardless, to deal with that potential argument, the court resorted to Latin:
Applying the ejusdem generis canon of statutory construction, the residual phrase in the second sentence of § 264(a)—which allows the Secretary to take “other measures” he deems necessary to stop the spread of disease—encompasses measures that are similar to inspection, fumigation, destruction of animals, and the like. Id. Plainly, an eviction moratorium does not fit that mold. Id.
In other words, “other measures” doesn’t mean “any other measures whatsoever” but “other measures like the ones listed,” such as inspection, fumigation, extermination, etc.
The non-delegation doctrine. Lastly, the court raises one of my favorite doctrines, the somewhat (ok,very) moribund non-delegation doctrine. As background, we all remember from 8th grade civics that the Constitution gives Congress the power to write laws and the Executive branch the power to carry out the laws. There have been cases in the past where the courts found that Congress delegated too much of its law-making powers to the agencies. Congress may only delegate its legislative authority if it limits its delegation. This is usually accomplished by Congress adding some sort of adjective or adverb and calling it an “intelligible principle” that cabins the powers granted. I’m just being honest here. In Tiger Lily, the court said:
the government’s interpretation of § 264(a) could raise a nondelegation problem. Van Buren v. United States, 141 S. Ct. 1648, 1661 (2021) (quoting Yates v. United States, 574 U.S. 528, 557 (2015) (Kagan, J., dissenting)). Under that interpretation, the CDC can do anything it can conceive of to prevent the spread of disease. That reading would grant the CDC director near–dictatorial power for the duration of the pandemic, with authority to shut down entire industries as freely as she could ban evictions. See Florida v. Becerra, No. 821–839–SDM–AAS, 2021 WL 2514138, *29–31 (M.D. Fla. June 18, 2021) (discussing the possible actions the government could take under its interpretation). In applying the nondelegation doctrine, the “degree of agency discretion that is acceptable varies according to the scope of the power congressionally conferred.” Am. Trucking, 531 U.S. at 475. Such unfettered power would likely require greater guidance than “such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases.” See Indus. Union Dep’t, AFL–CIO v. Am. Petroleum Inst., 448 U.S. 607, 645–46 (1980) (plurality opinion) (“[I]t is unreasonable to assume that Congress intended to give the Secretary the unprecedented power over American industry that would result from the Government’s view . . . . A construction of the statute that avoids this kind of open-ended grant should certainly be favored.”)
Keep this one in mind when federal agencies again lobby Congress for “mission authorization” or other wide-open grants of legislative authority where the executive branch would get to regulate all space activities or all space objects. We can hope that Congress would ignore these requests and continue its past practice of identifying specific activities that are so hazardous (such as launch) or of such public interest (such as radio interference) as to merit the expenditure of other people’s money. Congress should not turn over its legislative powers wholesale to a federal agency to regulate all of outer space. Should it do so, Congress should at least call the person in charge a Hegemon in the interest of fully disclosing how much of its Constitutional responsibility it has surrendered.
An excess of enthusiasm for the non-delegation doctrine. For those interested in further understanding the non-delegation doctrine, I urge you to read Judge Thapar’s concurrence. To make it easy, here it is:
If the separation of powers meant anything to our framers, it meant that the three necessary ingredients to deprive a person of liberty or property—the power to make rules, to enforce them, and to judge their violations—could never fall into the same hands. For that reason, our Founders did not just “split the atom of sovereignty” by dividing powers between the Federal Government and the States. Alden v. Maine, 527 U.S. 706, 751 (1999) (cleaned up). They also separated powers within the Federal Government: The legislative power went to Congress; the executive to the president; and the
judicial to the courts. That is the equilibrium the Constitution demands. And when one branch impermissibly delegates its powers to another, that balance is broken.
Of the three branches, Congress is the most responsive to the will of the people. And the Founders designed it that way for a reason: Congress wields the formidable power of “prescrib[ing] the rules by which the duties and rights of every citizen are to be regulated.” The Federalist No. 78, at 465 (Alexander Hamilton) (Clinton Rossiter ed., 1961). If legislators misused this power, the people could respond, and respond swiftly.
So, naturally, Congress has an incentive to insulate itself from the consequences of hard choices. That was clear from the start. Consider one prominent example. The Constitution empowers Congress “[t]o establish Post Offices and post Roads.” U.S. Const. art. I, § 8, cl. 7. For 18th-century Americans, this was high-stakes stuff. A federal post road could change a town’s fortunes overnight, so debates over their placement captured the national attention. When the Second Congress debated an early bill laying out a detailed plan for post roads running from Maine to Georgia, one Congress introduced an amendment “to strike the enumerated routes and replace them with the provision ‘by such route as the President of the United States shall, from time to time, cause to be established.’” Ilan Wurman, Nondelegation at the Founding, 130 Yale L.J. 1490, 1506 (2021). In other words, the amendment promised to transfer this set of hard choices from Congress to the executive branch.
It was a clever dodge, but it didn’t work. Congress rejected the proposal after several prominent Congressmen raised a nondelegation challenge. See id. at 1506–12. James Madison was representative when he argued that this proposal to “alienat[e] the powers of the House . . . would be a violation of the Constitution.” Id. at 1507.
Madison was right. The constitutional design is frustrated if “Congress could merely announce vague aspirations and then assign others the responsibility of adopting legislation to realize its goals.” Gundy v. United States, 139 S. Ct. 2116, 2133 (2019) (Gorsuch, J., dissenting). By shifting responsibility to a less accountable branch, Congress protects itself from political censure—and deprives the people of the say the framers intended them to have.
And yet, over the years, the guardrails have crumbled. See, e.g., Dep’t. of Transp. v. Ass’n of Am. R.Rs., 575 U.S. 43, 77 (2015) (Thomas, J., concurring in judgment) (noting that the Court’s test for enforcing the nondelegation doctrine “largely abdicates our duty to enforce that prohibition”). Thus, the Supreme Court should consider breathing new life into the doctrine.
But one common critique stands in the way: Congress simply isn’t up to the job. According to some, Congress is incapable of acting quickly in response to emergencies. Others say modern society is too complex to be run by legislators—better to leave it to the agency bureaucrats. In light of the original meaning, history, and structure of our Constitution, these arguments should not carry any weight. But even on their own terms, neither argument washes.
Start with concerns that Congress cannot act fast enough in a crisis. The government’s response to the coronavirus pandemic proves otherwise. Congress acted swiftly to pass broad relief for the general public. But it also switched out the hammer for the scalpel when necessary.
Take student veterans as an example. As the pandemic tore through the country, universities abruptly moved their lessons online. Under a Department of Veterans Affairs regulation, student veterans faced the specter of losing their housing stipends under the G.I. Bill if they stopped attending in–person classes. See 38 C.F.R. § 21.9640(b)(1)(ii). The VA could have changed that regulation through the Administrative Procedure Act’s emergency rulemaking provision. See 5 U.S.C. § 553(b)(3)(B), (d)(3). But Congress beat the administrative state to the punch. On March 21, 2020, just two days after California announced the country’s first statewide stay-at-home order, Congress passed Public Law 116-128 to temporarily override the VA regulation and prevent any disruption in veterans’ educational benefits.
The contention that Congress lacks the expertise to legislate on complicated topics appears similarly attractive at first glance. But the executive branch need not have a monopoly on experts. For example, Congress manages to pass tax legislation and annual budgets without outsourcing the job to the administrative agencies. If you took the critics of the nondelegation doctrine seriously, you might think that only the administrative state could predict how these laws would affect our nation’s long-term fiscal health. But Congress has famously maintained a strong grip on these issues
How? It has experts of its own. Professors Cross and Gluck have meticulously documented how nonpartisan structures like the Congressional Budget Office and the Joint Committee on Taxation—which are housed under Article I and ultimately accountable to Congress’s leadership—have provided Congress with “technical expertise” that “safeguards the legislative process from executive and interest-group encroachment.” Jesse M. Cross & Abbe R. Gluck, The Congressional Bureaucracy, 168 U. Pa. L. Rev. 1541, 1544 (2020). If Congress can manage the world-class economists at the CBO, then there’s no reason to think it could not “meaningfully reassert itself as the top-line decision-maker on [other] important matters pertaining to our administrative state.” Philip Wallach & Kevin R. Kosar, The Case for a Congressional Regulation Office, 48 Nat’l Affs. (Fall 2016). A strong nondelegation doctrine could compel Congress to strengthen its roster of expert institutions.
What’s the difference between executive-branch experts and congressional ones? Executive-branch experts make regulations; congressional experts make recommendations. Congressional bureaucracy leaves the law-making power with the people’s representatives—right where the Founders put it. Regardless of who came up with the idea, “[t]he sovereign people would know, without ambiguity, whom to hold accountable for the laws they would have to follow.” Gundy, 139 S. Ct. at 2134 (Gorsuch, J., dissenting).
This case proves the point. As is often true, there are two sides to today’s story. Compare Matthew Haag, A Landlord Says Her Tenants Are Terrorizing Her. She Can’t Evict Them, N.Y. Times (July 9, 2021), with Eviction Moratoriums Are Expiring, but Millions of Tenants Are Still Relying on Them, N.Y. Times (June 16, 2021). It is not our job as judges to make legislative rules that favor one side or another. But nor should it be the job of bureaucrats embedded in the executive branch. While landlords and tenants likely disagree on much, there is one thing both deserve: for their problems to be resolved by their elected representatives.