Lawlessness at the CDC

On January 20, 2021, Dr. Rochelle P. Walensky became the 19th Director of the Centers for Disease Control and Prevention. Then president-elect Joe Biden announced his intention to appoint her to this office in December 2020. Nothing more was needed for her to be appointed. The inauguration of Joe Biden as the nation’s 46th president coincided with new management at the CDC.

The lightning speed with which Dr. Walensky assumed office was possible because she was not confirmed by the Senate. Her lack of confirmation signals that she is supposed to be an “inferior Officer” under Article II, section 2 of the U.S. Constitution. Only those who are deemed “Officers of the United States” require confirmation. Inferior officers can skirt Senate confirmation as the Constitution stipulates that “Congress may by law vest the Appointment of such inferior officers, as they think proper, in the President alone.” 

Inferior officers do not possess broad discretion to interpret statutory laws for the purpose of implementing policy. They are generally limited to what the Supreme Court has described as “ministerial” functions. According to Marbury v. Madison, anyone limited to ministerial functions “acts, in this respect, under the authority of law, and not by the instructions of the president.” Having limited authority means, as Chief Justice John Marshall said, “[s]he is so far the officer of the law; is amenable to the laws for [her] conduct; and cannot at [her] discretion sport away the vested rights of others.” 

The Constitution doesn’t provide criteria for distinguishing between a Senate-confirmed officer and an inferior officer. But the Supreme Court provides some guidance. For instance, the Court was called upon to determine whether the office of an “independent counsel,” created to investigate high-ranking officials in the executive branch, was an inferior officer in Morrison v. Olson. The Court decided it was. Among the distinguishing characteristics of an inferior officer, according to the Court, are the following: 1) They are subject to supervision and control by higher officials 2) they have limited duties, and most significantly, 3) they do not possess “authority to formulate policy for the Government or the Executive Branch.” The independent counsel was found to be an inferior officer primarily because the position was only granted the power to investigate and possibly to prosecute executive officers. Had the independent counsel been able to interpret statutes in a discretionary manner to create policy, the independent counsel’s office would almost certainly have been unlawful absent confirmation by the Senate.

Two more recent Court cases illustrate the permissible scope of the power and the limits of an inferior officer. In Financial Oversight and Management Board for Puerto Rico v. Aurelius Investment, Congress created a Board of inferior officers to file for bankruptcy on behalf of Puerto Rico. Creditors sought to have the Board declared unconstitutional on various grounds, including that its officers should have received Senate confirmation. The creditors lost. The Court found the Board’s powers were limited to conducting investigations, overseeing budgetary and fiscal matters, as well initiating bankruptcy proceedings. Moreover, its powers were primarily local, not national, in scope. These important yet limited powers evinced that the Board members were properly appointed as inferior officers.

So too in Lucia v. SEC. Administrative Law Judges (ALJ) for the SEC were found to be inferior officers, not mere employees or officers requiring confirmation. The Court found that inferior officers hold “continuing office established by law” and they can have “significant discretion.” But the domain of discretion was limited to such matters as taking testimony, examining witnesses, and otherwise conducting trials. They could not, of course, create national policy.

One might reasonably ask, then, how an inferior officer, like Dr. Walensky, could possibly have the authority to order a temporary halt to evictions throughout the nation? Moreover, this particular order is coupled with stiff criminal penalties, including “a fine of no more than $100,000 or one year in jail, or both, if the violation does not result in a death, or a fine of $250,000 or one year in jail, or both if the violation results in death.” Stiffer financial penalties apply to organizations. The short answer is: she has no legal authority to do this.

The real culprit in this saga is not Dr. Walensky, nor is it her predecessor, Dr. Redfield. The culprits are our elected officials, especially in Congress, who encourage the CDC to go rogue.

Dr. Walensky did not unilaterally dream up this outrageous, if futile, power grab. She acts based upon the assumption that the Secretary of the HHS, an official confirmed by the Senate, delegated this authority to the CDC Director. The legal argument goes like this: the Public Service Health Act grants the Secretary broad authority to “make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases.” In turn, the Secretary has delegated to the Director of the CDC the power to “take such measures to prevent such spread of the diseases as he/she deems reasonably necessary, including inspection, fumigation, disinfection, sanitation, pest extermination, and destruction of animals or articles believed to be sources of infection.” Therefore, it is argued, the Director has the authority to issue an eviction moratorium in the context of Covid-19 to stop the spread of the virus.

Much is wrong with this line of argument. The flaw most noted is that it strains credulity to read the authorizing statute in such a way that grants a power to the Secretary of the HHS to punish landlords for evicting tenants who don’t pay their rent. In Alabama Association of Realtors v. Health and Human Services, the plaintiffs, representing landlords who could not evict non-paying tenants, made this point. They argued that the statutory language granting the HHS authority to prevent the spread of infectious diseases was not limitless, but needed to be interpreted in light of the kinds of measures Congress had in mind. These include “inspection, fumigation, disinfection, sanitation, pest extermination [and] destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings.” A national moratorium on evictions plainly is not like these other measures. The District Court agreed and ruled that the order exceeded statutory authority. While the Supreme Court recently refused to consider this case, Justice Kavanaugh’s concurrence signaled that a decision on the merits would disfavor the CDC: “In my view, clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July 31.”

But there is another significant problem with the CDC Director’s order. The problem is that discretionary power over national policy is being exercised by an inferior officer. Had Congress explicitly delegated to the CDC Director, as an inferior officer, the power to take whatever means the Director thought would be necessary to prevent or to limit the spread of an infectious disease, the Director’s office would risk being judged to be unconstitutional on the basis that such powers can only be given to a Senate-confirmed office. One wouldn’t even need to make the additional argument that Congress had delegated legislative powers, although that would also likely be true. But what Congress cannot delegate to an inferior officer, the HHS Secretary may not delegate to an inferior officer. An inferior officer should not be creating national policy no matter who is trying to delegate that authority. Dr. Walensky’s creation of law via a national moratorium on evictions is thus doubly troubling. She is purporting to do what not even the HHS Secretary can reasonably do under existing congressional law, that is make law as an inferior officer.

Lest one believe that this argument is intended to work only for the benefit of the propertied, recall that the eviction moratorium is not the only national order by the CDC. Dr. Walensky’s eviction moratorium is an extension of another ordered by Dr. Robert R. Redfield, who was appointed CDC Director by President Trump. Dr. Redfield ordered the exclusion of persons traveling to the United States from Mexico who might congregate at points of entry or border patrol stations at or near the U.S. border. To the chagrin of many Biden supporters, Dr. Walensky has recently extended this controversial policy.

The CDC order affecting migrants at the US-Mexico border is vulnerable to the same charge of unconstitutionality. Even assuming that the authority to limit entry into the country to prevent the spread of infectious disease can properly be delegated by Congress to the Secretary of the HHS, that doesn’t mean that the Director of the CDC can do it. The CDC Director is an inferior officer and it is patently inappropriate for an inferior officer to be dictating policy about matters of national and international significance.

The real culprit in this saga is not Dr. Walensky, nor is it her predecessor, Dr. Redfield. The culprits are our elected officials, especially in Congress, who encourage the CDC to go rogue. Members of Congress who claim to care so much about the possible eviction of tenants and the thousands of migrants huddled at the border could have foregone their summer recess, but they didn’t. They could have done the hard work of brokering a legislative compromise to address these issues, but they didn’t. That is what our constitutional system expects. The problem isn’t primarily the rogue CDC. It is our members of Congress who aren’t doing their jobs.