Biden Keeps Pushing Dubious Arguments for CDC Supremacy

The 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 their 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 Joe Biden deploys dubious legal arguments to defend unprecedented power grabs in the name of fighting COVID-19. If successful, those arguments would undermine federalism, the rule of law and the separation of powers.

The CDC argued that evictions could promote COVID-19 transmission by forcing people to move into "congregate or shared living setting(s)." It said its moratorium therefore was authorized by a 1944 law that allows regulations deemed "necessary" to prevent the interstate spread of "communicable diseases."

Like most of the federal judges who have addressed the issue, the Supreme Court did not buy that argument. "It is hard to see what measures this interpretation would place outside the CDC's reach, and the Government has identified no limit," it noted, "beyond the requirement that the CDC deem a measure 'necessary.'"

The justices said it "strains credulity" to assert that Congress gave the CDC that "breathtaking amount of authority." They said the statute's list of specific disease control measures "informs 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."

CDC's claimed authority" would "counsel against the Government's interpretation," since "we expect Congress to speak clearly" when it means to authorize powers of "vast 'economic and political significance.'" Notably, no one seems to have noticed the sweeping powers that the CDC claimed to discover last fall until 76 years after the law was enacted.

The Department of Education cited a different, more recent law on Monday, when it announced investigations of five states that have defied the CDC's 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 "parents of students with disabilities and with underlying medical conditions" who complained that "state bans on universal indoor masking are putting their children at risk and preventing them from accessing in-person learning equally." His argument implies that Section 504 makes the CDC's recommendations for schools mandatory.

"It's massive federal overreaching," said Hans Bader, a former senior attorney at the Competitive Enterprise Institute who also has worked in the DOE's Office for Civil Rights. "The federal government essentially wants to dictate systemic changes to states' school policies because of speculation (about) how those policies may affect disabled students in particular school districts."

Bader says Cardona's position is inconsistent with the relevant case law, which rejects discrimination claims based on speculative harms or parents' voluntary decisions. "The health benefits of wearing masks are so modest that European countries don't require young children to wear them," he said, "so the failure to attend school is due to parental or student choice, not effectively compelled by school policy."

Despite Cardona's emphasis on local autonomy, his interpretation of Section 504 suggests that school districts are not free to reject the CDC's 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 -- education and disease control -- that have long been recognized as primarily the responsibility of state and local governments. The Biden administration seems determined to anoint the CDC's director as the nation's COVID-19 dictator, no matter what the law says.

The bottom line regarding CDC is this imo. Originally a constitutionally justifiable (imo) military support unit to help protect soldiers from malaria, Congress has wrongly allowed CDC to become another of many examples of constitutionally undefined, domestic policy making, so-called "federal regulatory agencies" run by non-elected bureaucrats.

In other words, post-17th Amendment ratification, institutionally indoctrinated federal lawmakers now wrongly regularly allow "federal regulatory agencies" to get away with stealing unique, peacetime state powers to do Congress's dirty work for it.

More specifically concerning the CDC, regardless what the misguided (imo) Roberts Court wants everybody to think about the constitutionally of Obamacare for example, it remains that the states have never expressly constitutionally given the feds the specific power to dictate peacetime INTRAstate healthcare policy, not even where stopping the spread of disease is concerned.

In fact, starting at least as far back as President Thomas Jefferson, Jefferson had clarified that things like quarantines, healthcare, which the Constitution is silent about, are 10th Amendment-protected state power issues, not the business of the big nose (my words) feds.

"10th Amendment: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
"Many are the exercises of power reserved to the States wherein a uniformity of proceeding would be advantageous to all. Such are quarantines, health laws [emphasis added], regulations of the press, banking institutions, training militia, etc., etc." —Thomas Jefferson to James Sullivan, 1807.
”State inspection laws, health laws [emphasis added], and laws for regulating the internal commerce of a State, and those which respect turnpike roads, ferries, &c. are not within the power granted to Congress” —Gibbons v. Ogden, 1824.
"They form a portion of that immense mass of legislation, which embrace every thing in the territory of a state not surrendered to the general government. Inspection laws, quarantine laws, and health laws [emphasis added], as well as laws for regulating the internal commerce of a state, and others, which respect roads, fences, &c. are component parts of state legislation, resulting from the residuary powers of state sovereignty. No direct power over these is given to congress, and consequently they remain subject to state legislation, though they may be controlled by congress, when they interfere with their acknowledged powers." —Justice Joseph Story, Article I, Section 10, Clause 2, 1833.
“Inspection laws, quarantine laws, health laws of every description [emphasis added], as well as laws for regulating the internal commerce of a state and those which respect turnpike roads, ferries, &c., are component parts of this mass.” —Justice Barbour, New York v. Miln., 1837.
“Direct control of medical practice in the states is obviously [emphases added] beyond the power of Congress.” –Linder v. United States, 1925.
"From the accepted doctrine that the United States is a government of delegated powers, it follows that those not expressly granted, or reasonably to be implied from such as are conferred, are reserved to the states, or to the people. To forestall any suggestion to the contrary, the Tenth Amendment was adopted. The same proposition, otherwise stated, is that powers not granted are prohibited [emphasis added]." —United States v. Butler, 1936.

Corrections, insights welcome.

The remedy for unconstitutionally big, alleged election-stealing, Democratic-pirated federal government that is oppressing everybody under its boots...

Consider that all the states can effectively “secede” from the unconstitutionally big federal government by doing the following.

Patriots need to primary federal and state elected officials who don't send voters email ASAP that clearly promises to do the following.

Federal and state lawmakers need to promise in their emails to introduce resolutions no later than 100 days after start of new legislative sessions that proposes an amendment to the Constitution to the states to repeal the 16th and ill-conceived 17th Amendments, but also an amendment to clean up the judiciary.

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