Improving the CDC Quarantine Station Network's Response to Emerging Threats (2022) / Chapter Skim
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6 Legal and Regulatory Authority
6 Legal and Regulatory Authority
Pages 171-206
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From page 171... ...
The committee believes that the CDC should be afforded ample legal authority to carry out its mission using evidence-based measures to reduce the interstate or international spread of infectious diseases. This would require legal reforms, including modernizing the Public Health Service Act of 1944 (PHSA)
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The Agency's Division of Global Migration and Quarantine (DGMQ) is responsible for drafting regulations and undertakes operations related to this regulatory authority.
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From page 173... ...
In recent rulings enjoining some of the CDC's COVID-19 orders related to the CDC's repeated issuance of eviction moratoriums, however, the Supreme Court and several lower federal courts have indicated that the CDC's statutory authority be interpreted far more narrowly. Some lower courts have also held that Congress is constitutionally prohibited from delegating authority to administrative agencies in broad, catch-all terms.
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From page 174... ...
Sections 361 and 362 of the PHSA8 authorize federal health officials9 "to prevent the introduction, transmission, or spread of communicable diseases" into the United States from foreign countries and across state and territorial borders within the United States. These provisions are in a part of the PHSA titled "Quarantine and Inspection." However, they authorize at least some additional measures.
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From page 175... ...
TABLE 6-1 Powers Granted to the CDC by the Public Health Service Act of 1944 Authority Statute Power to make and enforce regulations necessary to prevent the PHSA Section 361(a) introduction, transmission, or spread of communicable diseases into the United States from foreign countries and across state and territorial borders within the United States.
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From page 176... ...
Currently, the list of quarantinable diseases is limited to cholera, diphtheria, infectious tuberculosis, plague, smallpox, yellow fever, viral hemorrhagic fevers, severe acute respiratory syndromes, influenza viruses with pandemic potential, and measles.10 If the CDC sought to apprehend, detain, or conditionally release individuals based on the risk of any other communicable disease, the president would first have to issue an executive order amending the list of quarantinable diseases. The PHSA amendments in 2002 streamlined the process for updating the list.
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From page 177... ...
Power to Implement Other "Necessary Measures" to Prevent CrossBorder Disease Spread The legislative history of the PHSA indicates that Congress intentionally chose broad language to authorize "other measures, as in [the CDC director's] judgement may be necessary" to prevent the spread of communicable disease into the United States from foreign countries or across state and territorial borders.11 Administrative officials and judges may read 11 A recent report by the Congressional Research Service notes that legislators viewed Section 361's broadly framed first sentence as a continuation of an 1893 statute authorizing "regulations to prevent the spread into the country, or between the States, of contagious or infectious diseases," but only if state and local regulations were nonexistent or inadequate.
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From page 178... ...
; or b) that a public health emergency, including significant outbreaks of infectious disease or bioterrorist attacks, otherwise exists." A federal PHE determination allows the HHS secretary greater flexibility to suspend, waive, or modify certain regulatory requirements that might otherwise impede the health care system's emergency response, to make grants, to enter into contracts, and to access emergency and reserve funds.
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From page 179... ...
During the response to the pandemic, the CDC has issued orders that have relied on a broad interpretation of the PHSA. In litigation defending its COVID-19 orders, the CDC has argued that judges should read Section 361 broadly to authorize restrictions and mandates for individuals, businesses, and airports, ports, and carriers -- including face-mask requirements for public transit, vaccination requirements for cruise ships, testing requirements for air passengers entering the United States, and a moratorium on residential evictions.
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From page 180... ...
Face Mask Order February 2021 Global Contact February 7, 2020 Will cease to be in effect on the Tracing Order earlier of (1) the date that is two incubation periods after the last known case of 2019–nCoV, or (2)
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Code §§264, 268) Program for Cruise Ships • Ongoing Under Section 361 of the Public Health Service Act (42 U.S.
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From page 182... ...
to issue an order suspending cruise ship operations from U.S. ports of call.16 This order was extended until October 30, 2020, when the CDC replaced its "no-sail" order with a "conditional-sail" order17 that set forth extensive sanitation, screening, and testing requirements for cruise ship operators before the CDC would permit them to resume sailing.
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From page 183... ...
Simultaneously, a similar series of events played out in Costa Mesa, Califor nia, after the federal government designated a vacated, state-owned facility that once housed residents with developmental disabilities as an isolation site for pas sengers from the Diamond Princess cruise ship who tested positive for COVID-19. Local officials objected, stating that they were not included in the planning process and citing concerns for the safety of Costa Mesa residents.
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From page 184... ...
Residential Eviction Moratorium Orders On September 4, 2020, following initial congressional authority, the CDC issued an order strictly regulating residential evictions for nonpayment of rent.20 The order applied to tenants who met income eligibility criteria and had exhausted available means of obtaining assistance. To establish the nexus with the interstate spread of disease, the order required tenants to provide a declaration under penalty of perjury that they would likely be homeless or forced to move into a congregate or shared living situation if evicted.
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From page 185... ...
Supreme Court despite previously allowing the moratorium to stand just weeks earlier.22 Transit Face-Mask Order Under PHSA Section 361(a) , on January 29, 2021, the CDC issued an order requiring workers and passengers to wear face masks on shared conveyances and in transportation hubs.
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. Predeparture Testing Requirements for Air Passengers Entering the United States and Vaccination Requirements under Immigration Authorities On December 25, 2020, the CDC issued an order requiring airlines to ensure that all passengers aged two and older (including U.S.
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Additionally, a suit challenging the CDC's transit mask order is pending in federal district court. Enjoinment of the CDC's Eviction Moratorium Order In Alabama Association of Realtors v.
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Becerra, a federal district court judge granted Florida's request for a preliminary injunction blocking the CDC from enforcing its cruise ship conditional-sail order.38 The judge held that the state was likely to succeed on the merits of its claims because -- among other arguments discussed in the following -- the order exceeded the CDC's authority. The Eleventh Circuit initially stayed the district court's order, postponing implementation of the injunction and permitting the CDC to enforce the cruise ship order while litigation continued.
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From page 189... ...
Mayorkas, a federal district court judge granted the plaintiff class's request for a preliminary injunction blocking the administration from relying on the CDC's Section 362 authority to expel migrants. The judge reasoned that Section 362, which allows the CDC to suspend introduction of persons into the United States "simply contains no mention of the word "expel" -- or any synonyms thereof -- within its text." Consistent with what the Supreme Court has called the "major questions doctrine," the judge reasoned that courts "expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance,'" 43 the judge ruled that the CDC had exceeded its authority.
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From page 190... ...
However, additional clarification from the courts may not be forthcoming. Harmonization of STLT efforts is necessary for best use of regulatory authority and infectious disease mitigation.
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From page 191... ...
Separation of Powers and Administrative Law Limits Some lower federal courts have gone further than the Supreme Court majority by basing their decisions enjoining the CDC's orders on constitutional constraints that limit Congress's ability to delegate authority to the CDC in broadly delineated terms. For example, in Tiger Lily, LLC, the Sixth Circuit reasoned that the CDC's broad interpretation of Sec
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. It would have particularly devastating consequences for pandemic prevention and response capabilities, given how legislatures have traditionally relied on broadly delineated delegations of authority to health agencies to control communicable diseases using measures consistent with public health necessity.
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The First Amendment's Free Exercise and Establishment Clauses and the federal and state Religious Freedom Restoration Acts protect religious liberty. Under the new Supreme Court majority's emerging jurisprudence, if a CDC order includes any secular exemption, the lack of a religious exemption on equal or better terms may trigger strict scrutiny by the courts.50 First Amendment protections for freedom of expression and assembly may limit the extent to which gathering limits restrict political events or protests.51 The Second Amendment's protection for the 48 GAO, Centers for Disease Control & Prevention -- Applicability of Congressional Review Act to Requirement for Persons to Wear Masks While on Conveyances and at Transportation Hubs (December 14, 2021)
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(assuming, without deciding, that strict scrutiny was the proper standard for reviewing Maine's executive order requiring interstate travelers to self-quarantine on arrival and prohibiting them from doing so in temporary lodgings within the state, but finding strict scrutiny was probably satisfied because no less restrictive alternative was reasonably available at a time when COVID-19 testing was not readily accessible)
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–(d) , use of these powers would be contingent on a finding by the CDC director that they "are necessary 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."57 The COVID-19 pandemic has revealed how a coordinated, evidence-based national strategy is needed to prevent and control dangerous infectious disease outbreaks.
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apprehension, detention, examination, and conditional release of individuals based on known or reasonably suspected infection or exposure and inspection, fumigation, disinfection, sanitation, pest extermination, or destruction of animals or articles found to be infected or contaminated would not be effective in preventing the introduction, transmission, or spread of a designated list of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession; and (3) STLT regulations are insufficient to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or pos session into any other State or possession.
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From page 197... ...
However, such regulatory reforms may not overcome narrow statutory interpretations by the federal courts. SURGE FUNDING FOR OUTBREAK RESPONSE Challenges in Obtaining Timely Surge Funding Historically, funding for large-scale public health emergencies has primarily relied on redirecting (i.e., reprogramming)
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a disease or disorder presents a public health emergency; or (2) a public health emergency, including significant outbreaks of infectious diseases or bioterrorist attacks, otherwise exists, the secretary may take such action as may be appropriate to respond to the public health emergency, including making grants, providing awards for expenses, and entering into contracts and conducting and supporting investigations into the cause, treatment, or prevention of a disease or disorder .
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. 63 "There is established in the Treasury a reserve fund to be known as the "Infectious Diseases Rapid Response Reserve Fund" (the "Reserve Fund")
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. 66 More information about the Post-Katrina Emergency Response Act is available from https://emilms.fema.gov/is_0822/groups/20.html (accessed March 4, 2022)
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This notion is further discussed in the "Changes in the DGMQ's Organizational Capacity and Infrastructure" chapter, which details the current DGMQ budget and spending in addition to the emphasis on the urgent need for a sustainable and proactive emergency funding system. Possible Fund Allocation Criteria and Response/Reporting Requirements The Committee identified a set of possible criteria for fund allocation: • When a public health emergency declaration has been made; • When state or Indian Tribal Government resources are over 67 42 U.S.
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From page 202... ...
a description of the STLT or Indian tribal government resources that will also be used to mitigate the public health emergency. The purpose of specifying criteria and requiring reporting and accountability mechanisms is to ensure that HHS, and its subsidiary the CDC, uses surge funding in an appropriate and effective way, and does not simply use emergency funding for day-to-day operations.
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From page 203... ...
Give the CDC authority to effectively act to prevent or mitigate current and future public health threats. The CDC should have the authority it needs but must act consistently with scientific evidence, and only where necessary to prevent the interstate, intrastate, or international spread of infectious diseases.
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2020, February 28. A Southern California city is barring people who were on the coronavirus-stricken Diamond Princess cruise ship from entering its town.
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The U.S. Supreme Court's rulings on large business and health care worker vaccine mandates.
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From page 206... ...
2017. Statement of policy: Public health emergency response fund.
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