The Centers for Disease Control and Prevention has issued ever-changing, sometimes contradictory guidance throughout the Covid-19 pandemic. But the disparity between the agency’s treatment of evictions and its approach to the immigration crisis at the southern border represents a new low.
Federal law and regulations give the CDC authority to act “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.” Regulations also “provide for the apprehension, detention, examination, or conditional release of individuals . . . reasonably believed to be infected with a communicable disease.”
The CDC’s imposition in September of a nationwide eviction moratorium stretched this authority. The moratorium made it a crime—subject to a penalty of up to one year of imprisonment and a fine of up to $250,000—to evict certain tenants for not paying rent. The dubious justification was that evicted people might move into close quarters where it would be difficult to observe social distancing or other infection-control measures: shared family housing, for instance, or congregated settings like shelters. Never mind that potential evictees could have been living in close settings already or that a controlled shelter setting may make distancing easier. Never mind, too, that unless those evictees were scrupulously sheltering-in-place, avoiding contact with anyone outside their home, moving would not necessarily increase their contacts with others.
Not only does the moratorium do little to reduce Covid-19’s spread, it may also violate the Constitution and the statute that the CDC relied on to issue the order. Two weeks ago, a federal court in Texas declared the eviction moratorium unconstitutional because it exceeds the limited powers granted the federal government in the Constitution’s Commerce Clause. The court found that property rights in buildings are “inherently local,” and regulation of local evictions does not have a substantial effect on interstate commerce. The CDC order did not limit enforcement to evictions that affect interstate commerce; just 15 percent of the millions of Americans who relocate each year cross state lines. And two days ago, a federal judge in Ohio found that the moratorium exceeded the CDC’s statutory authority. For the moment, both decisions apply only to the plaintiffs in the cases, since neither court imposed an injunction ordering the agency to stop enforcing the moratorium.
While the CDC was willing to stretch constitutional limits, statutory language, and common sense to regulate evictions, it has taken a hands-off approach to limiting the spread of Covid-19 from Mexico into Texas and beyond into other states—an area where it has clear constitutional and statutory authority. Amid a surge in migration, the CDC is not requiring Covid-19 testing of migrants, nor is it requiring those who test positive to isolate. That’s a job for local governments and NGOs, according to White House spokesperson Jen Psaki.
Local authorities in Brownsville, Texas have tested 1,553 migrants released at the bus station by the Border Patrol since January 25, finding that 185 were Covid-19 positive but lacking the authority to detain them. The Covid-positive migrants reportedly planned to travel on to other states, including Maryland and New Jersey. How many more are being released elsewhere?
Federal regulations direct the CDC to arrange for “appropriate accommodation” and “appropriate medical treatment . . . for individuals who are apprehended or held in quarantine or isolation under this part.” Yet the CDC is abandoning its own Covid-19 protocols, allowing shelters housing children crossing the Mexico–U.S. border to expand capacity above the 50 percent limit recommended to inhibit viral spread. After professing concern that evicted Americans might be endangered in shelters, the agency relaxed migrant-shelter standards in response to the Biden administration’s immigration policy. On average, 321 children per day are being referred to shelters, up from 47 per day in early January. A record 3,700 migrant children are currently in Border Patrol custody.
The CDC’s nationwide eviction moratorium had less to do with science than with political posturing. It exceeded the agency’s mandate while doing little to protect the public from illness. Yet, in an attempt to obscure the immigration crisis that the Biden administration currently faces, the agency has abdicated its duty to protect against communicable diseases that cross international and interstate borders. The CDC should focus on its core mission: protecting the nation from health threats both foreign and domestic.
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