Scope of CDC Authority Under Section 361 of the Public Health Service Act (PHSA)

Scope of CDC Authority Under Section 361 of the Public Health Service Act (PHSA)

Scope of CDC Authority Under Section 361 of
April 13, 2021
the Public Health Service Act (PHSA)
Wen W. Shen
Since the beginning of the Coronavirus Disease 2019 (COVID-19) pandemic, all levels of
Legislative Attorney
government have grappled with how to stem the spread of the disease. Until the recent

authorization of several COVID-19 vaccines, community mitigation activities (such as social
distancing and use of face covering), combined with traditional tools of communicable disease

control (such as testing, contact tracing, quarantine, and isolation)—have been the primary
strategies used to reduce or prevent COVID-19 transmission.
Under the United States’ federalist system, states and the federal government share regulatory authority over public health
matters, with states traditionally exercising the bulk of authority in this area. Consistent with this framework, states and
localities have been at the leading edge of the United States’ pandemic response in many respects. For instance, to varying
degrees, they issued mandates aimed at promoting the relevant public health measures, including temporary stay-at-home
orders, restrictions on public gatherings, requirements to wear face coverings under specified circumstances, and quarantine
requirements for out-of-state travelers. Because adherence to some of these measures—particularly ones that place
restrictions on business operations—resulted in income losses for their residents and businesses, states have also issued
orders aimed at alleviating the pandemic’s associated economic impact. For example, many states temporarily halted
evictions or provided other housing support to assist households that have experienced pandemic-related income losses that
rendered them unable to pay rent. The federal government’s pandemic response to date includes providing support to states
through guidance, technical assistance, and funding, as well as providing certain direct assistance to private entities and
individuals, including through several pandemic relief legislations.
The scale and nature of the pandemic have prompted some commentators to call for the imposition of public health orders at
the federal level. In their view, coordinated federal action, rather than a patchwork of state-level orders, is the more effective
approach to addressing COVID-19, given that the virus that causes COVID-19 is highly transmissible and can cause serious
illness in some people. Commentators have considered whether Section 361 of the Public Health Service Act (PHSA) could
serve as a source of authority for such federal executive action. Section 361 authorizes the Secretary of Health and Human
Services (HHS Secretary)—who, in turn, delegated the authority to the Centers for Disease Control and Prevention (CDC)
and the U.S. Food & Drug Administration (FDA)—to issue regulations “necessary” to prevent the foreign and interstate
spread of communicable diseases.
In September 2020, the CDC—in the broadest invocation of its Section 361 authority to date—issued an order that nationally
halted residential evictions for certain tenants under specified conditions. The CDC concluded that this eviction moratorium
was necessary to prevent the interstate spread of COVID-19 because evictions could lead a sizeable portion of the population
to become homeless or to relocate to new congregate living situations that increase the risk of COVID-19 transmission. The
CDC’s order—which could be characterized as both a public health and an economic regulation—could raise larger questions
about the scope of agency authority under Section 361, including the CDC’s authority to implement transmission control
measures that have broader economic implications.
This report analyzes the potential scope of agency authority under Section 361. It begins by providing background regarding
Section 361’s text and enactment, followed by an overview of the legal principles relevant to analyzing the provision’s scope.
The report then applies these principles to conclude that transmission control measures that implicate major political and
economic questions, or otherwise exceed agency expertise, potentially exceed the bounds of agency discretion under Section
361. The report further considers the text, structure, and legislative history of Section 361 and surmises that the provision
may be susceptible to at least two plausible constructions. Under the narrower construction, the authority under Section
361(a) to issue “necessary” regulations would be limited to steps necessary in the enforcement of quarantine. Under a broader
reading of Section 361, this authority would encompass any evidenced-based public health measures that do not otherwise
involve major political and economic questions, or otherwise exceed constitutional limits. In the context of the COVID-19
pandemic, this broader construction may include, for instance, the authority to mandate face coverings to prevent the
interstate and foreign spread of the disease. The report concludes with some considerations for Congress in light of the
preceding analysis.
Congressional Research Service

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Contents
Background on Section 361 of the PHSA ....................................................................................... 4
The Text of Section 361 and Related Provisions....................................................................... 4
The Enactment and Amendment of Section 361 ....................................................................... 6
Development of Relevant Federal Law Preceding Section 361 .......................................... 7
Drafters’ Comments on Section 361 ................................................................................... 9
Amendment of Section 361 ............................................................................................... 11
Agencies’ Use of Section 361 Authority .................................................................................. 11
Legal Framework .......................................................................................................................... 15
Statutory Interpretation ........................................................................................................... 15
Chevron Deference .................................................................................................................. 17
The Two-Step Framework ................................................................................................ 17
The Major Questions Doctrine .......................................................................................... 18
The Nondelegation Doctrine ................................................................................................... 21
Analysis ......................................................................................................................................... 23
Analysis of Existing Case Law on Section 361 ...................................................................... 23
Possible Outer Limits on Agency Authority Under Section 361 ............................................. 27
Plausible Constructions of Section 361 ................................................................................... 30
Considerations for Congress.......................................................................................................... 32

Contacts
Author Information ........................................................................................................................ 33

Congressional Research Service

Scope of CDC Authority Under Section 361 of the Public Health Service Act (PHSA)

ince the beginning of the Coronavirus Disease 2019 (COVID-19) pandemic, all levels of
government have grappled with how to stem the spread of the disease.1 Until the recent
authorization of several COVID-19 vaccines,2 community mitigation activities—
S including healthy hygiene practices, social distancing, avoidance of congregate settings,
and use of face masks, combined with the traditional tools of communicable disease
control such as detecting, testing, contact tracing,3 quarantine (of healthy exposed persons),4 and
isolation (of infected persons)5—have been the primary strategies used to reduce or prevent
COVID-19 transmission.6 Even as COVID-19 vaccines become available, public health experts
caution that the public health measures employed to date should continue,7 given that data on the
ability of the vaccines to reduce the transmission of SARS-CoV-2—the virus that causes COVID-
19—and the duration of the vaccine’s protection against COVID-19 are still being collected.8

1 See, e.g., Rachel Treisman, California Closes Indoor Businesses Statewide as COVID-19 Cases Surge, NPR (July 13,
2020), https://www.npr.org/sections/coronavirus-live-updates/2020/07/13/890602390/california-closes-indoor-
businesses-statewide-as-covid-19-cases-surge; Deadwood Extends Mask Mandate to March 31, BLACK HILLS PIONEER
(Jan. 5, 2020), https://www.bhpioneer.com/covid-19/deadwood-extends-mask-mandate-to-march-31/article_5aaa7b78-
4f84-11eb-b59f-8f3cd80ca94b.html; Sheryl Gay Stolberg, Biden Unveils a National Pandemic Response That Trump
Resisted, N.Y. TIMES (Jan. 21, 2020), https://www.nytimes.com/2021/01/21/us/politics/biden-coronavirus-
response.html.
2 To date, the FDA issued emergency use authorizations (EUAs) for three COVID-19 vaccines. See U.S. FOOD & DRUG
ADMIN., FDA Takes Key Action in Fight Against COVID-19 by Issuing Emergency Use Authorization for First
COVID-19 Vaccine (Dec. 11, 2020), https://www.fda.gov/news-events/press-announcements/fda-takes-key-action-
fight-against-covid-19-issuing-emergency-use-authorization-first-covid-19; U.S. FOOD & DRUG ADMIN., FDA Takes
Additional Action in Fight Against COVID-19 by Issuing Emergency Use Authorization for First COVID-19 Vaccine
(Dec. 18, 2020), https://www.fda.gov/news-events/press-announcements/fda-takes-additional-action-fight-against-
covid-19-issuing-emergency-use-authorization-second-covid; U.S. FOOD & DRUG ADMIN., FDA Issues Emergency Use
Authorization for Third COVID-19 Vaccine (Feb. 27, 2021), https://www.fda.gov/news-events/press-announcements/
fda-issues-emergency-use-authorization-third-covid-19-vaccine.
3 Contact tracing is a component of a public health investigation “used to identify the close contacts of persons infected
with a communicable disease, notify them of potential exposure, and enable control measures such as quarantining
exposed persons.” CRS In Focus IF11609, Contact Tracing for COVID-19: Domestic Policy Issues, by Kavya Sekar
and Laurie A. Harris.
4 Quarantine refers to the separation of individuals or groups reasonably believed to have been exposed to a contagious
disease, but who are not yet ill, from others who have not been so exposed, to prevent the possible spread of the
disease. See CTRS. FOR DISEASE CONTROL & PREVENTION, Legal Authorities for Isolation and Quarantine (Feb. 24,
2020), https://www.cdc.gov/quarantine/aboutlawsregulationsquarantineisolation.html.
5 Isolation refers to the separation of an individual or group infected with contagious disease from those who are
healthy to prevent the spread of the disease. See id.
6 See CTRS. FOR DISEASE CONTROL & PREVENTION, Implementation of Mitigation Strategies for Communities with Local
COVID-19 Transmission (Oct. 29, 2020), https://www.cdc.gov/coronavirus/2019-ncov/community/community-
mitigation.html.
7 See, e.g., Grace Dickinson, Yes, You Still Need to Wear a Mask After You Get the COVID-19 Vaccine. Here’s Why,
PHILA. INQUIRER (Dec. 21, 2020), https://www.inquirer.com/philly-tips/covid-vaccine-coronavirus-mask-vaccinated-
efficacy-20201216.html; CTRS. FOR DISEASE CONTROL & PREVENTION, Post Vaccine Considerations for Healthcare
Personnel (Dec. 13, 2020), https://www.cdc.gov/coronavirus/2019-ncov/hcp/post-vaccine-considerations-healthcare-
personnel.html (stating that vaccinated health care providers “should continue to follow all current infection prevention
and control recommendations to protect themselves and others from SARS-CoV-2 infection”).
8 See U.S. FOOD & DRUG ADMIN., Pfizer-BioNTech COVID-19 Vaccine Frequently Asked Questions (Jan. 6, 2021),
https://www.fda.gov/emergency-preparedness-and-response/mcm-legal-regulatory-and-policy-framework/pfizer-
biontech-covid-19-vaccine-frequently-asked-questions. The vaccines were authorized based on their efficacy in
protecting vaccinated individuals from developing COVID-19 symptoms, not on their efficacy in preventing infection
by SARS-CoV-2. See id. As the FDA notes, however, “[m]ost vaccines that protect from viral illnesses also reduce
transmission of the virus that causes the disease by those who are vaccinated,” but specific data on the authorized
vaccines’ ability to reduce the transmission of SARS-CoV-2 are not yet available. See id. Questions also remain as to
whether the authorized vaccines would protect against new variants of COVID-19. See Andrew Joseph, The Looming
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Under the United States’ federalist system, states and the federal government share regulatory
authority over public health matters, with states traditionally exercising the bulk of the authority
in this area pursuant to their general police power.9 This power authorizes states, within
constitutional limits, to enact laws “to provide for the public health, safety, and morals” of the
states’ inhabitants.10 In contrast to this general power, the federal government’s power is confined
to those powers enumerated in the Constitution.11
Consistent with this framework, states and localities have been at the leading edge of the United
States’ pandemic response in many respects.12 For instance, to varying degrees, states have issued
numerous mandates aimed at promoting the relevant public health measures, including temporary
stay-at-home orders that require the closure of nonessential businesses,13 restrictions on public
gatherings,14 requirements to wear face masks under specified circumstances,15 and quarantine
requirements for out-of-state travelers.16 Because adherence to some of these measures—
particularly ones that place restrictions on business operations—resulted in income losses for
their residents and businesses, states also issued orders aimed at alleviating the pandemic’s
associated economic impact. For example, many states temporarily halted evictions or provided
other housing support to assist households that experienced pandemic-related income losses
rendering them unable to pay rent.17 As another example, some states also provided businesses
with temporary liability shields that insulate them to varying degrees from tort liabilities related
to SARS-CoV-2 exposure.18
The federal government’s pandemic response to date includes providing support to states through
guidance, technical assistance, and funding, as well as providing certain direct assistance to
private entities and individuals.19 This support includes assistance through four COVID-19
supplemental appropriations bills passed in March and April 2020: (1) the Coronavirus
Preparedness and Response Supplemental Appropriations Act, 2020;20 (2) the Families First

Questions Scientists Need to Answer About the New Variant of the Coronavirus, STAT (Dec. 21, 2020),
https://www.statnews.com/2020/12/21/looming-questions-new-variant-coronavirus/.
9 See Elizabeth Y. McCuskey, Body of Preemption: Health Law Traditions and the Presumption Against Preemption,
89 TEMPLE L. REV. 95, 113–20 (2016).
10 Barnes v. Glen Theatre, Inc., 501 U.S. 560, 569 (1991).
11 See CRS Report R45323, Federalism-Based Limitations on Congressional Power: An Overview, coordinated by
Andrew Nolan and Kevin M. Lewis, at 1.
12 See Rebecca L. Haffajee & Michelle M. Mello, Thinking Globally, Acting Locally—The U.S. Response to COVID-
19, NEW ENG. J. MED. (May 28, 2020), https://www.nejm.org/doi/10.1056/NEJMp2006740.
13 See CRS Legal Sidebar LSB10469, Federal Authority to Lift or Modify State and Local COVID-19 “Stay-at-Home”
Orders: Frequently Asked Questions, by Jay B. Sykes.
14 See, e.g., S. Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613, 1613 (2020) (discussing California’s
executive order that places numerical restrictions on public gatherings).
15 See Kaia Hubbard, These States Have COVID-19 Mask Mandates, U.S. NEWS (Dec. 2, 2020),
https://www.usnews.com/news/best-states/articles/these-are-the-states-with-mask-mandates.
16 NAT’L GOVERNORS ASSOC., Status of State COVID-19 Traveler Quarantine Orders/Guidance (Dec. 18, 2020),
https://www.nga.org/traveler-quarantine-order-guidance-covid-19/.
17 See discussion infra notes 258–262 and accompanying text.
18 See CRS Report R46540, COVID-19 Liability: Tort, Workplace Safety, and Securities Law, by Kevin M. Lewis et al.
19 See, e.g., Press Briefing by Vice President Pence and Members of the Coronavirus Task Force (Nov. 19, 2020),
https://www.whitehouse.gov/briefings-statements/press-briefing-vice-president-pence-members-coronavirus-task-
force-november-19-2020/ (“From very early in this pandemic, at the President’s direction, we have followed an
approach to this pandemic that was federally supported, state managed, and locally executed.”).
20 Pub. L. No. 116-123, 134 Stat. 146.
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Coronavirus Response Act;21 (3) the Coronavirus Aid, Relief, and Economic Security Act
(CARES Act);22 and (4) the Paycheck Protection Program and Health Care Enhancement Act.
Congress then passed the Consolidated Appropriations Act, 2021 in December 202023 and the
American Rescue Plan Act of 2021 in March 2021.24
The scale and nature of the pandemic have prompted some commentators to call for the
imposition of public health orders at the federal level.25 In their view, coordinated federal action,
rather than a patchwork of state-level orders, is the more effective approach to addressing the
COVID-19 pandemic, given that SARS-CoV-2 is highly transmissible and can cause serious
illness in some people.26 Commentators have considered whether Section 361 of the Public
Health Service Act (PHSA) could serve as a source of authority for such federal executive
action.27 Section 361 authorizes the Secretary of Health and Human Services (HHS Secretary)—
who, in turn, has delegated the authority to the Centers for Disease Control and Prevention (CDC)
and the U.S. Food & Drug Administration (FDA)—to issue regulations “necessary” to prevent the
foreign and interstate spread of communicable diseases.28
In September 2020, the CDC—in the broadest invocation of its Section 361 authority to date29—
issued an order that nationally halted residential evictions for tenants making less than $99,000 a
year (or $198,000 jointly) through the end of 2020 under specified conditions.30 The CDC
concluded that this eviction moratorium was necessary to prevent the interstate spread of
COVID-19 because evictions could lead a sizeable portion of the population to become homeless
or relocate to new congregate living situations that increase the risk of COVID-19 transmission.31
A recent study of state-level moratoriums concluded that lifting eviction moratoriums was
associated with increased COVID-19 incidence and mortality in those states, providing support
for CDC’s public health rationale.32 At the same time, the CDC’s order followed shortly after the
lapse of a narrower eviction moratorium that Congress enacted under the CARES Act as part of a
larger effort to provide economic relief to individuals in the earlier months of the pandemic.33
Thus, the CDC’s order—which could be characterized as both a public health and an economic
regulation—could raise larger questions about the scope of agency authority under Section 361,
including the CDC’s authority to implement transmission control measures that have broader
economic implications.

21 Pub. L. No. 116-127, 124 Stat. 177.
22 Pub. L. No. 116-136, 134 Stat. 281.
23 See H.R. 133, 116th Cong. (2020).
24 H.R. 1319, 117th Cong. (2021) (enacted).
25 See Lindsay F. Wiley, CDC’s Boundary-Pushing Eviction Freeze, AM. CONST. SOC’Y (Sept. 3, 2020),
https://www.acslaw.org/expertforum/cdcs-boundary-pushing-eviction-freeze/.
26 See Haffajee & Mello, supra note 12.
27 See id.
28 42 U.S.C. § 264(a).
29 See infra “Agencies’ Use of Section 361 Authority”; see also Wiley, supra note 25.
30 85 Fed. Reg. 55,292, 55,293 (Sept. 4, 2020).
31 Id. at 55, 294–55,296.
32 See infra note 278 and accompanying text.
33 Coronavirus Aid, Relief, and Economic Security Act § 4024, Pub. L. No. 116-136, 134 Stat. 285, 492 (2020)
(codified at 15 U.S.C. § 9058).
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This report analyzes the potential scope of agency authority under Section 361. It begins by
providing background regarding Section 361’s text and enactment,34 followed by an overview of
the relevant legal background—including applicable statutory interpretation and administrative
law principles—that are relevant to analyzing the provision’s scope.35 The report then applies
these principles to conclude that transmission control measures that implicate major political and
economic questions, or otherwise exceed agency expertise, potentially exceed the bounds of
agency discretion under Section 361.36
The report further considers the text, structure, and legislative history of Section 361 and surmises
the provision may be susceptible to at least two plausible constructions.37 On the narrower end of
the spectrum, the authority under Section 361(a) to issue “necessary” regulations might be limited
to steps necessary in the enforcement of quarantine.38 In the modern era, such measures may
encompass steps intended to facilitate the identification of quarantinable individuals, such as
screening, testing, and contact tracing.39 Under a broader reading of Section 361, the authority to
issue “necessary” regulations might encompass the authority to implement any evidenced-based
public health measures that do not otherwise implicate major political and economic questions, or
otherwise exceed constitutional limits.40 In the context of the COVID-19 pandemic, this broader
construction may encompass, for instance, the authority to mandate face covering to prevent
foreign and interstate transmission of the disease. The report concludes with some considerations
for Congress in light of the preceding analysis.
Background on Section 361 of the PHSA
Congress enacted Section 361 as part of the PHSA in 1944.41 Other than certain amendments
made in 2002 discussed below, Section 361 has largely remained the same as initially enacted.42
This part provides an overview of Section 361’s text and related provisions, its history of
enactment and amendments, and historical uses of this authority by federal agencies.
The Text of Section 361 and Related Provisions
Section 361 of the PHSA, titled “Control communicable diseases,” appears under Part G
(“Quarantine and Inspection”) of Title III of the PHSA, which sets forth the general powers and
duties of the Public Health Service (PHS).43 Section 361 has five subsections, (a) through (e).
Section 361(a) provides:

34 See infra “The Text of Section 361 and Related Provisions”; “The Enactment and Amendment of Section 361.”
35 See infra “Legal Framework.”
36 See infra “Possible Outer Limits on Agency Authority Under Section 361.”
37 See infra “Plausible Constructions of Section 361.”
38 See id.
39 See id.
40 See id.
41 Pub. L. No. 78-410, 58 Stat. 682, 703–04 (1944).
42 See infra “Amendment of Section 361.”
43 The headings and subheadings referenced in this report are as they appear in the PHSA, and may differ slightly from
the versions codified in Title 42 of the U.S. Code. Title 42 of the U.S. Code is a non-positive law title that has been
editorially arranged by the Code’s editors and includes certain changes in the compiled laws’ text to facilitate their
inclusion in the Code. See U.S. HOUSE OFF. OF THE LEGIS. COUNSEL, OFF. OF THE LAW REVISION COUNS., Positive Law
Codification, https://uscode.house.gov/codification/legislation.shtml (last visited Mar. 18, 2021).
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The Surgeon General,[44] with the approval of the Secretary, is authorized to make and
enforce such regulations as in his judgment 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. For
purposes of carrying out and enforcing such regulations, the Surgeon General may 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.45
Subsections 361(b) through (d) specify the conditions under which regulations may be issued
“under this section” to provide for the apprehension, detention, and conditional release of
individuals to prevent the introduction or spread of communicable diseases.46 Subsection (b)
limits the issuance of such regulations to prevent the introduction and spread of only those
communicable diseases designated by the President (upon the recommendation of the HHS
Secretary in consultation with the Surgeon General) in executive orders.47 The quarantinable
communicable diseases designated in Executive Order No. 13,295, as amended, include, among
other diseases, severe acute respiratory syndromes that include COVID-19.48
These regulations generally apply only to individuals arriving from a foreign country under
subsection (c).49 Under subsection (d), however, the regulations may apply to an individual
residing within a state if the individual is reasonably believed to be (1) infected with a
communicable disease in a qualifying stage, and (2) moving or about to move from one state to
another state, or a probable source of infection to individuals who, if infected with such disease,
will be moving from one state to another while the disease is in a qualifying stage.50 The term
“qualifying stage,” with respect to a communicable disease, is defined as either the disease’s
(1) communicable stage, or the time period during which an infected person can spread the
infection to others; or (2) in a stage preceding this infectious period, if the disease would be likely
to cause a public health emergency if transmitted to other individuals.51
Subsection (e) sets forth Section 361’s preemptive scope. It states that Section 361 preempts any
state law that “conflicts with an exercise of federal authority under this section,” but otherwise
generally preserves state law.52

44 Although Section 361 by its terms delegates authority to the Surgeon General, the HHS Secretary—following
departmental reorganizations ratified by Congress—delegated the authority under this provision to the CDC and FDA.
See infra notes 120–122 and accompanying text.
45 42 U.S.C. § 264(a) (emphasis added).
46 Id. § 264(b)–(d).
47 Id. § 264(b).
48 See 85 Fed. Reg. 56,424, 56,443 (Sept. 11, 2020). Under Executive Order 13,295, as amended, quarantinable “severe
acute respiratory syndromes” are diseases that (1) are associated with fever and signs and symptoms of respiratory
illness; (2) are capable of being transmitted from person to person; and (3) are either causing, or have the potential to
cause a pandemic, or, upon infection, are highly likely to cause mortality or serious morbidity if not property
controlled. Exec. Order No. 13,295 (Apr. 4, 2003), as amended by Exec. Order No. 13,375 (Apr. 1, 2005) and Exec.
Order No. 13,674 (July 31, 2014).
49 42 U.S.C. § 264(c).
50 Id. § 264(a).
51 Id. § 264(d)(2).
52 Id. § 264(e).
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For any person detained “in accordance with quarantine laws,” Section 322 of the PHSA
authorizes the payment for the care and treatment, in a public or private facility, of such
individuals.53
Section 368 of the PHSA specifies the penalties for violations of regulations “prescribed under
[Section 361].”54 Violators may be subject to statutory penalties of up to one year in jail or a fine
of $1,000, or both.55 Generally applicable criminal statutes on sentencing, however, authorize
higher fines.56 The CDC has incorporated the higher fines into the applicable regulations, which
subject violating individuals to a fine up to $100,000 if the violation does not result in death, or a
fine of up to $250,000 if the violation results in a death.57 Violations by organizations are subject
to a fine of up to $200,000 per event if the violation does not result in a death, or $500,000 per
event if the violation results in a death.58
The PHSA provides two sources of assistance in enforcing regulations issued under Section 361.
Section 311 authorizes the HHS Secretary to accept state and local assistance in the enforcement
of “quarantine regulations made pursuant to this chapter,” to the extent such state and local
authorities “may be able and willing to provide” such assistance.59 Additionally, Section 365
directs customs officers (e.g., Customs and Border Protection officers) and Coast Guard officers
“to aid in the enforcement of quarantine rules and regulations,” but prohibits the provision of any
additional compensation, other than actual and necessary traveling expenses, for providing such
services.60
The Enactment and Amendment of Section 361
The PHSA, signed into law by President Franklin D. Roosevelt on July 3, 1944, substantially
consolidated and revised all then-existing laws affecting the PHS.61 The PHS—now comprised of
eight agencies designated by the Department of Health and Human Services (HHS) following
several departmental reorganizations62—was at the time a public health agency headed by the
Surgeon General.63 The PHS traced its roots to a system of marine hospitals established in 1798.64
Over the ensuing century and a half, however, the Agency saw its functions grow in a piecemeal

53 Id. § 249.
54 Id. § 271(a). As noted in supra note 43, the codified version of this section heading (“Penalties for violation of
quarantine laws”) is slightly different from the version in the PHSA (“Penalties”). See Pub. L. No. 78-410, 58 Stat. 682,
706.
55 42 U.S.C. § 271(a).
56 See 18 U.S.C. §§ 3559, 3571(b)(5), (c)(5).
57 See 42 C.F.R. § 70.18(a).
58 See id. § 70.18(b).
59 42 U.S.C. § 243(a).
60 Id. § 268(b).
61 See Pub. L. No. 78-410, 58 Stat. 682, 682 (1944); see also OFF. OF THE SURGEON GEN., Public Health Service Act,
1944, 59 PUB. HEALTH REP. 897, 916 (July 14, 1944), available at https://www.ncbi.nlm.nih.gov/pmc/articles/
PMC2017078/pdf/pubhealthreporig01529-0001.pdf.
62 See CRS Report R44916, Public Health Service Agencies: Overview and Funding (FY2016-FY2018), coordinated by
C. Stephen Redhead and Agata Bodie, at 1.
63 See Lynne Page Snyder, Passage and Significance of the 1944 Public Health Service Act, 109 PUB. HEALTH REP.
721, 722 (1994).
64 See U.S. NAT’L LIB. OF MED., Images from the History of the Public Health Service: Introduction,
https://www.nlm.nih.gov/exhibition/phs_history/intro.html (last accessed Oct. 8, 2020); Snyder, supra note 63, at 722.
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fashion as the federal government expanded its role in public health.65 Throughout the 19th
century, for instance, Congress enacted several laws that expanded the Agency’s functions
beyond the provision of health care to seamen to include “the supervision of national quarantine
(ship inspection and disinfection), the medical inspection of immigrants, the prevention of
interstate spread of disease, and general investigations in the field of public health, such as that of
yellow fever epidemics.”66
At the turn of the 20th century, Congress further expanded the Agency’s functions to include
biomedical research and coordination of state and national public health activities.67 The PHSA,
as explained by one of its drafters,68 reflects an effort to “to bring together into a single and
consistent enactment virtually all of the statutes relating to the [PHS]”—a body of law that “had
accumulated over a century and a half, with little system or consistency, with many duplications
and a few important gaps, and with an abundance of ambiguity.”69 In commenting on the PHSA at
the time of its passage, the Public Health Report published by the Office of the Surgeon General
similarly described the law as “eliminat[ing] many outmoded regulations and . . . streamlin[ing]
the administration of the [PHS],” as well as clarifying and broadening the scope of the PHS’s
functions.70
Consistent with this overall purpose of the PHSA, drafters of the PHSA characterized Section 361
as “confirming” or “strengthening” already existing authorities of the PHS with respect to foreign
and interstate quarantine71—one of the most well-established public health measures to prevent
the spread of communicable disease at the time.72
Development of Relevant Federal Law Preceding Section 361
The use of quarantine to prevent the spread of communicable diseases has a long history in
Europe and the United States.73 Even before the development of more specific scientific
knowledge of the cause and transmission mode of communicable diseases, the city of Venice
engaged in the practice in the early part of the 14th century to treat infected ships, travelers, and

65 See id.
66 See U.S. NAT’L LIBRARY OF MED., supra note 64; OFF. OF THE SURGEON GEN., supra note 61, at 917 (“Fundamental
reorganization laws expanding [PHS] functions and strengthening its administration have been enacted through the
years.”).
67 U.S. NAT’L LIB. OF MED., supra note 64.
68 These comments were made by Alanson W. Willcox, then-Assistant General Counsel of the Federal Security
Agency. Along with then-Surgeon General Thomas Parran Jr., Mr. Willcox testified in congressional hearings
regarding the bill’s purposes as one of its drafters. See Hearing Before a Subcomm. on Interstate & Foreign Commerce
on H.R. 3379: A Bill to Codify the Laws Relating to the Public Health Service, and for Other Purposes, 78th Cong. 64
(1944) [hereinafter Hearing on H.R. 3379] (noting that Mr. Willcox was among “the ones who worked on this bill, as
far as the lawyers are concerned”); Snyder, supra note 63, at 723.
69 Alanson W. Willcox, The Public Health Service Act, 1944, 7 SOC. SEC. BULL. 15, 15 (1944); see also Snyder, supra
note 63, at 723 (noting PHSA’s drafters “sifted through more than 100 years’ worth of earmarked acts, appropriations
measures, Presidential Executive Order, and regulations”).
70 OFF. OF THE SURGEON GEN., supra note 61, at 916.
71 See, e.g., Willcox, supra note 69, at 16, 17 (noting then-Surgeon General Parran—a principal architect of the law—
asserted that the PHSA also “confirms the broad powers and duties of the [PHS] with respect to foreign and interstate
quarantine”).
72 See infra “Development of Relevant Federal Law Preceding Section 361.”
73 See, e.g., RALPH C. WILLIAMS, THE UNITED STATES PUBLIC HEALTH SERVICE, 1798–1950, at 63–69 (Commissioned
Officers Ass’n of the U.S. Pub. Health Serv. 1951).
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merchandise.74 This quarantine system gradually spread throughout Europe and, in some places,
the measures encompassed “drastic destruction, such as the burning of all goods belonging to
infected persons.”75 The term itself traces its origin to the Italian word quarantina, or the period
of forty days that arriving suspect ships and passengers had to spend at a landing station remote
from the city and harbor under the quarantine procedures in place in Europe during the Middle
Ages.
In the United States, the first quarantine restrictions were enacted at a local level by the colonies
in Colonial America.76 At the turn of the 18th century, the predominant concern regarding
communicable diseases—primarily smallpox and yellow fever—was their introduction by sea
from foreign ports, rather than domestic sources.77 Following the American Revolution, states
transferred and expanded colonial regulations governing quarantine into state law, empowering
state and local governments to exclude all people and goods from elsewhere—including other
parts of the United States—on public health grounds.78
Given the strong local character of quarantine, the federal government’s role in quarantine began
tentatively, and not until twenty years after the American Revolution.79 The first federal law
enacted by Congress that directly addressed quarantine merely authorized the President, at the
request of a state, to assist in the execution of state quarantines.80 The recurrences of deadly
epidemics in the 19th century, however, prompted Congress to make further forays into federal
quarantine efforts.
During the Civil War, which lasted from 1861 to 1865, more soldiers died from infectious
diseases than on the battlefield, highlighting the inadequacies of then-existing public health laws
implemented at the state and local levels.81 Following several severe outbreaks of yellow fever in
1877 and 1878,82 Congress enacted an 1878 law that empowered the Surgeon General, then the
head of the Marine Hospital Service (MHS)—the predecessor agency to PHS—to create federal
quarantine regulations to prevent the introduction of contagious or infectious diseases into the
United States, but stipulated that federal regulations must not conflict with or impair those of state
and local authorities.83 The new law also strengthened federal quarantine authority by making the
MHS the central agency with which incoming vessels must report incidence of infectious disease,
allowing MHS to monitor ships coming from infected ports or bearing infected passengers.84
Over the next decade, Congress slowly expanded federal quarantine authority.85 In the last
significant quarantine legislation before the PHSA’s enactment, in 1893, Congress enacted a law

74 See id. at 63.
75 See id.
76 See id. at 65–66; Laura K. Donohue, Biodefense and Constitutional Constraints, 4 U. MIA. NAT’L SEC. & ARMED
CONFLICT L. REV. 82, 94–95 (2014).
77 See Williams, supra note 73, at 65–66; Donohue, supra note 76, at 95–97.
78 Donohue, supra note 76, at 110–13, 125.
79 Id. at 126.
80 An Act Relative to Quarantine, ch. 31, 1 Stat. 474 (1796) (repealed 1799).
81 See Donohue, supra note 76, at 136; Jeffrey S. Sartin, Infectious Diseases During the Civil War: The Triumph of the
“Third Army,” 16 CLINICAL INFECTIOUS DISEASES 580, 580 (1993).
82 See GEDDES SMITH, A PLAGUE ON US 21–22 (1941); The Yellow Fever Epidemic of 1888, 12 JAMA 22, 22 (1889).
83 Act of Apr. 29, 1878 § 5, ch. 66, 20 Stat. 37, 38.
84 Id. § 2.
85 See, e.g., Act of Mar. 3, 1879, ch. 202, 20 Stat. 484 (repealed 1893); Act of Mar. 27, 1890, ch. 51, 26 Stat. 31.
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that expanded federal quarantine authority in several respects.86 Several provisions of the law
appear to focus specifically on preventing the foreign introduction of communicable diseases.87
The law, for instance, specified the conditions under which a vessel arriving from foreign ports
may discharge its cargo or land its passengers in the United States.88 It also authorized the
Secretary of the Treasury to remand an infected vessel to a federal quarantine station—if a state
or local quarantine station with sufficient quarantine provisions was not available—“for the
necessary disinfection and treatment of the vessel, passengers, and cargo.”89 The law further
authorized the President to suspend immigration from a country if introduction of persons or
property from such country would increase a “serious danger of the introduction of [cholera or
other infectious or contagious diseases] into the United States.”90
In addition to provisions related to foreign quarantine, however, the law also appeared to more
broadly authorize the Secretary of the Treasury to issue rules and regulations “to prevent the
introduction of contagious or infectious diseases into the United States from foreign countries,
and into one State or Territory or the District of Columbia from another State or Territory or the
District of Columbia.” 91 This language appears to provide the authority for interstate quarantine
and beyond, and required such rules and regulations to operate “uniformly.”92 At the same time,
however, the law also appears to limit the Secretary’s exercise of this authority at ports and places
where there were insufficient or no existing state and local quarantine laws.93 The law
contemplated enforcement of these rules and regulations by state and local authorities, but
directed the President to execute and enforce the laws if state authorities fail or refuse to enforce
them.94
Drafters’ Comments on Section 361
Against this backdrop of incremental development of federal law in this area, a drafter of the
PHSA—in a House Committee Hearing concerning the bill—said codification on this subject was
“most urgently called for,” given that then-existing statutes were “long and confused” and
overlapping.95 He described Section 361, enacted under a title of the Act that “contains the basic
operating authority of the [PHS],” as concerning “quarantine and inspection and supersedes
several complex, outmoded, and inadequate statutes on the subject.”96
With respect to the first sentence of Section 361(a), which broadly authorizes the Surgeon
General to make and enforce necessary regulations to prevent the foreign and interstate spread of
communicable diseases, the drafter characterized it as expressing “the gist of a long and complex
provision of the act of February 15, 1893.”97 Although the older statute authorized “regulations to
prevent the spread into the country, or between the States, of contagious or infectious diseases,” it

86 See Act of Feb. 15, 1893, ch. 114, §§ 2–4, 52 Stat. 449, 450 (1893).
87 See id.
88 See id. § 6, 52 Stat. at 452.
89 See id.
90 See id. § 8, 52 Stat. at 452.
91 See id. § 3, 52 Stat. at 450.
92 See id.
93 See id.
94 See id.
95 Hearing on H.R. 3379, supra note 68, at 138.
96 Willcox, supra note 69, at 17.
97 Hearing on H.R. 3379, supra note 68, at 138–39.
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conditioned the issuance of such regulations “on the nonexistence or inadequacy of State and
local regulations.”98 In the drafter’s view, the elimination of this condition removed “nothing of
substance,” given the drafters’ view that (1) the states had already “wholly withdrawn” from
foreign quarantine; and (2) as to interstate quarantine, the federal law would be “confined to
matters pertaining to the interstate movement of people or things over which the States have both
constitutional and practical difficulties in achieving effective control.”99 The drafter further
explained that the second sentence of Section 361(a) “would expressly authorize the [PHS] to
make inspections and take other steps necessary in the enforcement of quarantine.”100 The enacted
language, according to the drafter, “more clearly . . . provide[s] for the disposition of animals and
articles which are potential sources of infection.”101
The drafters further explained that subsections (b) through (d) were “designed to clarify, perhaps
enlarge, the authority with respect to the apprehension and detention of individuals.”102 The
drafters noted two forms of quarantine authorities were contemplated: first, the authority to deny
entry at a port of entry; and second, the authority “to isolate individual persons who are
considered dangerous to the community.”103 Subsection (b) was intended as a limitation on the
latter form of quarantine, permitting the apprehension, detention, or conditional release of
individuals only for diseases specified in executive orders, and also clarifying that conditional
release is permissible.104 Subsection (c) confirmed then-existing quarantine authority over
individuals arriving from foreign states.105 Subsection (d) expanded existing interstate quarantine
authority to authorize the quarantine of individuals reasonably believed to be infected with a
communicable disease, and who would be moving from state to state or would be a probable
source of infection to someone else who would be moving from state to state.106
The drafters stated that the contemplated use of Section 361 authority at the time related to a
potential use of subsection (d) to implement a “new rapid-treatment technique” to control the
spread of venereal disease.107 At the same time, however, the drafters also emphasized that “these
provisions are written in broader terms in order to make it possible to cope with emergency
situations which we cannot now foresee.”108 In a separate committee hearing, then-Surgeon
General Thomas Parran Jr. similarly echoed the view that the authority under Section 361 “may
be very important because of the possibility that strange diseases may be introduced in the
country and become a threat,” and “[f]lexibility in dealing with such contingencies would be very
helpful.”109

98 Id. at 139.
99 Id.
100 Id.
101 Id.
102 Id.
103 Id.
104 Id. at 140.
105 Id.
106 Id. at 139.
107 Id. at 66–67.
108 Id. at 140.
109 Hearing before a Subcomm. on Educ. and Labor, 78th Cong. 6 (1944).
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Amendment of Section 361
Since it enacted Section 361 in 1944, Congress has substantively amended the provision once, in
2002, as part of the Public Health Security and Bioterrorism Preparedness and Response Act of
2002 (PHSBPRA).110 Congress enacted PHSBPRA to bolster the nation’s ability to respond
effectively to bioterrorist threats and other public health emergencies following the anthrax
attacks in the fall of 2001.111 The amendments primarily expanded the HHS Secretary’s authority
in two ways.112 First, under Section 361(b), PHSBPRA eliminated a provision that only allowed
the Secretary to issue quarantine rules if they were recommended by the National Advisory
Health Council.113 Second, as to interstate quarantine, the law permitted the quarantine of
individuals who are reasonably believed to be not only in the communicable stage of an
infectious disease, but also in the precommunicable stage, if the disease in question “would be
likely to cause a public health emergency if transmitted to other individuals.”114 The PHSBPRA
also added a preemption provision as subsection (e).115
Agencies’ Use of Section 361 Authority
Prior to the COVID-19 pandemic, agencies that were delegated authority under Section 361
generally invoked the provision to issue regulations related to the quarantine and isolation of
individuals believed to have been infected or exposed to a contagious disease, 116 as well as the
control or treatment of areas, animals, or articles that were susceptible or subject to contamination
or infection.117
From its enactment to around the 1950s, the PHS primarily invoked its Section 361 authority to
issue federal quarantine rules that were similar to the rules in force in 1900, including the
examination by federal medical inspectors of most airplanes and vessels entering the United
States.118 Significant medical advances in the 1950s and 1960s—particularly in the development
of vaccines—reduced the impact of communicable diseases. 119 That reduced impact, in turn, led
to more limited exercise of agencies’ Section 361 authority.
By 1970, a series of agency reorganizations greatly reduced the Surgeon General’s administrative
role and transferred the line authority for PHS’s administration to the Assistant Secretary for

110 Public Health Security and Bioterrorism Preparedness and Response Act of 2002 § 142, Pub. L. No. 107-188, 116
Stat. 594, 626. Congress also amended Section 361 in 1976 to clarify that for purposes of subsection (d), the term
“States” includes only the several States and the District of Columbia. Pub. L. No. 94-317, § 301(b)(1), 90 Stat. 695
(1976).
111 See, e.g., 147 Cong. Rec. H9212-13 (2001).
112 See H.Rept. 107-481, at 34–35, 114 (2002).
113 See id. at 34.
114 See id. at 35.
115 PHSBPRA § 142(c), 116 Stat. at 627 (codified at 42 U.S.C. § 264(e)) (“Nothing in this section or section 363, or the
regulations promulgated under such sections, may be construed as superseding any provision under State law
(including regulations and including provisions established by political subdivisions of States), except to the extent that
such a provision conflicts with an exercise of Federal authority under this section or section 363.”).
116 See 42 C.F.R. §§ 70.1–70.18 (regulations on interstate quarantine), §§ 71.1–71.63 (regulations on foreign
quarantine).
117 See 21 C.F.R. §§ 1240.3–1240.95.
118 See WILLIAMS, supra note 73, at 98.
119 See Cristine Russell, Centers for Disease Control: 40 Years of Demystifying Illness, WASH. POST, Sept. 4, 1986, at
A15.
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Health in the Department of Health, Education, and Welfare (HEW),120 which became the HHS in
1980.121 Following the reorganizations, the HEW Secretary delegated the Section 361 authority to
two agencies: the CDC, the federal government’s lead public health agency, and the FDA, which
generally regulates the safety and/or efficacy of food, drugs, cosmetics, and other consumer
products.122 Under this delegation, the CDC oversaw foreign quarantine while the FDA oversaw
interstate quarantine.123 By the mid-1970s, the CDC curtailed the exercise of its Section 361
authority to “change[] its focus from routine inspection to program management and problem
intervention,” having determined that in the modern era, dangers from communicable diseases
would primarily come from isolated hot spots.124 Airplanes and vessels, for instance, were no
longer subject to federal quarantine inspection as a matter of course unless the pilot or vessel
master reported an illness to the quarantine station.125 The practice of routinely spraying aircrafts
with pesticides was also discontinued.126
In 2000, the HHS Secretary transferred the FDA’s interstate quarantine authority over persons to
the CDC, consolidating all quarantine authority—foreign and interstate—over persons to the
CDC.127 The CDC and the FDA retain concurrent regulatory authority over animals and other
products that may transmit or spread communicable diseases, with the CDC exercising foreign
quarantine authority and the FDA exercising interstate quarantine authority.128
Until the COVID-19 pandemic, the CDC primarily invoked its Section 361 authority to issue and
refine regulations relating to quarantine and isolation. Specifically, the CDC has invoked its
authority under Section 361(b) through (d): to specify, for instance, the conditions and procedures
for subjecting individuals to temporary custody to determine if a federal quarantine or isolation

120 Pursuant to then-existing reorganization authority, President Lyndon B. Johnson, in 1966, sent to Congress a
Reorganization Plan that empowered the Secretary of HEW to reorganize the PHS. See Reorganization Plan No. 3 of
1966; see also DEP’T OF HEALTH, EDU., & WELFARE, HISTORY, MISSION, AND ORGANIZATION OF THE PUBLIC HEALTH
SERVICE 3 (1976). Pursuant to the Reorganization Plan, in 1968 the HEW Secretary abolished the Office of the Surgeon
General (though not the position of Surgeon General itself) and transferred line authority for the administration of PHS
to the Assistant Secretary for Health. See id.
121 Between 1932 and 1984, Congress periodically enacted laws that delegated authority to the President to reorganize
portions of the federal government according to specific guidelines and procedures. See, e.g., Reorganization Act of
1949, Pub. L. No. 109, 63 Stat. 203; see also CRS Report R44909, Executive Branch Reorganization, by Henry B.
Hogue, at 6–7. Under the pre-1983 procedures, the President’s reorganization plan would go into effect unless one or
both houses of Congress passed a resolution rejecting the plan—a process referred to as a “legislative veto.” See
Reorganization Act of 1949, § 6, 63 Stat. at 205. In 1983, the Supreme Court held in INS v. Chadha, 462 U.S. 919,
956–59 (1983), however, that a one-house veto—to the extent it constitutes a legislative act—violates the
Constitution’s bicameralism and presentment requirements for lawmaking. To address concerns that Chadha raised
questions regarding the validity of then-existing reorganization plans—many of which had gone into effect subject to a
one-house veto provision—Congress passed legislation in 1984 ratifying all of the reorganization plans that had gone
into effect. See Pub. L. No. 98-532, 98 Stat. 2705 (1984).
122 See Redhead & Bodie, supra note 62.
123 See 65 Fed. Reg. 49,906, 49,907 (2000).
124 CTRS. FOR DISEASE CONTROL & PREVENTION, History of Quarantine (Feb. 12, 2007), http://www.cdc.gov/ncidod/
dq/history.htm [https://web.archive.org/web/20091224025958/http://www.cdc.gov/ncidod/dq/history.htm].
125 See 38 Fed. Reg. 16,861, 16,861 (1973).
126 See 60 Fed. Reg. 3596, 3596 (1995) (noting that “in 1979, the [CDC] amended the Foreign Quarantine Regulations
(42 CFR Part 71) to discontinue requiring routine spraying because of concern for the health of passengers and crew,
and the lack of evidence that aircraft spraying played a significant role in disease control, and the belief that
discontinuation of spraying would not present a significant public health threat”).
127 See 65 Fed. Reg. 49,906, 49,907 (2000).
128 See id.
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order is warranted;129 for subjecting individuals to medical examination and sample collection by
authorized health care providers;130 and for the issuance of a federal quarantine or isolation
order.131 The CDC has primarily invoked its broader authority under Section 361(a) to implement
measures that support or facilitate the exercise of its quarantine or isolation authority. To facilitate
the identification of individuals who may have a quarantinable communicable disease, for
example, the CDC has invoked its Section 361(a) authority to conduct general traveler health
screening at ports of entry and locations of interstate travel,132 and to impose certain reporting
requirements on individuals and commercial carriers to facilitate contact tracing.133 The CDC also
relies on this authority to prohibit individuals subject to a federal quarantine or isolation order
from traveling even in intrastate traffic, unless they have received a written travel permit issued
by the CDC.134
The FDA has primarily invoked its Section 361(a) authority to prohibit the transport or sale of
specified animals (e.g., molluscan shellfish, psittacine bird, and turtles) and other products (e.g.,
garbage for use as swine feed) that the Agency has determined to be susceptible to certain
contamination or infection.135
In response to the COVID-19 pandemic, the CDC invoked its Section 361 authority to support
certain quarantine-related measures. In the early months of the pandemic, CDC invoked its
Section 361 authority to impose additional reporting requirements on airlines to provide
identifying information about passengers or crew who may be at risk of exposure to a
communicable disease.136 The Agency also required certain travelers arriving from China to be
quarantined for 14 days from the day they left China.137 As a new, more transmissible form of
SARS-CoV-2 emerged in England, the CDC also issued an order requiring airlines to verify that
every arriving passenger over the age of two departing from any foreign country (1) attests to
having received a negative COVID-19 test result during the three calendar days before the flight’s
departure; and (2) has documentation reflecting such negative test result.138 For passengers who
recovered from COVID-19, the passenger may instead provide documentation from a licensed

129 See 81 Fed. Reg. 54,229, 54,242 (2016).
130 See 42 C.F.R. §§ 70.12, 70.1.
131 See id. § 70.14; 81 Fed. Reg. 54,229, 54,246 (2016).
132 See 42 C.F.R. §§ 70.10, 71.20; 81 Fed. Reg. 54,229, 54,243–44 (2016) (noting that the screening authority applies
“broadly to all circumstances where individuals may queue with other travelers because certain communicable diseases
may be spread from person to person under such circumstances”).
133 See, e.g., 42 C.F.R. § 70.10(b) (requiring individuals screened under a public health risk assessment to provide basic
contact-tracing information which would be used to locate and notify individuals of a potential exposure to a
communicable disease); id. § 70.11 (requiring pilots of a commercial airline to report to CDC the occurrence on board
of any deaths or ill persons among passengers or crew, and to take measures as CDC may direct to prevent the potential
spread of the communicable disease); id. § 71.4(d) (requiring any airline with a flight arriving into the United States to
collect and make certain passenger or crew contact information available to CDC within twenty-four hours of a CDC
order); id. § 71.5 (similar obligation on vessel operators).
134 See id. § 70.5(d), (e); 81 Fed. Reg. 54,229, 54,243 (2016) (stating that the Agency’s Section 361(a) authority
extends to the regulation of “certain activities that occur entirely within a State if those activities present a risk of
interstate disease spread, as would occur, for instance, in the event of inadequate local control”).
135 See 21 C.F.R. §§ 1240.60–1240.62, 1240.65, 1240.75.
136 See 85 Fed. Reg. 7874, 7874 (2020).
137 See CTRS. FOR DISEASE CONTROL & PREVENTION, Travelers from China Arriving in the United States (Feb. 7, 2020),
https://www.cdc.gov/coronavirus/2019-ncov/travelers/from-china.html [https://web.archive.org/web/20200220004302/
https://www.cdc.gov/coronavirus/2019-ncov/travelers/from-china.html].
138 86 Fed. Reg. 7387, 7388 (Jan. 28, 2021).
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health care provider or public health official stating they are cleared for travel.139 Although the
order does not specify, the CDC appears to have imposed these requirements based on its power
under Section 361(a) to conduct general passenger health screenings.140
The CDC also invoked its Section 361 more broadly in its COVID-19 pandemic response. In
September 2020, the CDC issued an order that halted residential evictions nationwide for tenants
making less than $99,000 a year (or $198,000 jointly) through December 2020 under specified
conditions.141 The CDC issued the order fewer than two weeks after the expiration of a different
and narrower set of eviction protections Congress enacted under the CARES Act.142 The CARES
Act eviction moratorium—which protected renters from being forced to vacate between March 27
and August 23, 2020—applied only to rental properties receiving certain federal assistance or
federally related financing.143
The CDC concluded a national eviction moratorium was necessary to prevent the interstate
spread of COVID-19 because (1) COVID-19 is highly contagious in congregate settings; (2) as
many as 30 to 40 million people could be at risk of eviction; (3) a sizeable portion of that
population may become homeless or have to live in new congregate settings that increase the risk
of COVID-19 transmission; and (4) states have not done enough to curb COVID-19
transmission.144 On December 21, 2020, as the CDC eviction moratorium was set to expire,
Congress reached an agreement on a COVID-19 relief plan in the Consolidated Appropriations
Act, 2021.145 Among its numerous relief measures, the law legislatively extended the CDC
moratorium until January 31, 2021, and provided $25 billion for states and localities to fund
emergency rental assistance.146 On January 29, 2021, the CDC further extended the moratorium
until March 31, 2021.147 In March 2021, Congress enacted the American Rescue Plan Act of 2021
to provide further pandemic relief, including $21.55 billion for emergency rental assistance and
$5 billion for new emergency housing vouchers for people at risk of experiencing homelessness
and those fleeing domestic, dating, or sexual violence.148 On March 28, 2021, the CDC further
extended the eviction moratorium until June 30, 2021.149

139 See id.
140 See id. at 7391 (stating the Order is issued pursuant to Sections 361 and 365 of the PHSA and 42 C.F.R.. § 71.20,
which authorize the CDC Director to conduct public health prevention measures at U.S. ports of entry, and § 71.31(b),
which authorizes the CDC Director to detain a carrier until completion of the health measures).
141 85 Fed. Reg. 55,292, 55,293 (Sept. 4, 2020).
142 Coronavirus Aid, Relief, and Economic Security Act, § 4024, Pub. L. No. 116-136, 134 Stat. 285, 492 (2020)
(codified at 15 U.S.C. § 9058).
143 15 U.S.C. § 9058; see also CRS Insight IN11516, Federal Eviction Moratoriums in Response to the COVID-19
Pandemic, by Maggie McCarty and Libby Perl.
144 85 Fed. Reg. at 55,294–96.
145 H.R. 133, 116th Cong. (2020).
146 Id. div. N, §§ 501–02.
147 86 Fed. Reg. 8020, 8020–21 (Feb. 2, 2021).
148 H.R. 1319, §§ 3201–02, 117th Cong. (2021). The American Rescue Plan Act of 2021 does not address the eviction
moratorium, which may be subject to exclusion from the legislation under the procedures for reconciliation, the process
through which the law was enacted. See CRS Report RL30862, The Budget Reconciliation Process: The Senate’s
“Byrd Rule”, by Bill Heniff Jr., at 5–6 (describing extraneous matters subject to exclusion in reconciliation legislation).
149 CTRS. FOR DISEASE CONTROL & PREVENTION, TEMPORARY HALT IN RESIDENTIAL EVICTIONS TO PREVENT THE
FURTHER SPREAD OF COVID-19 6-7 (Mar. 28, 2021), https://www.cdc.gov/coronavirus/2019-ncov/more/pdf/CDC-
Eviction-Moratorium-03292021.pdf.
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Legal Framework
The scope of agency authority under Section 361, including the authority to implement certain
measures specific to addressing COVID-19, is a question of statutory interpretation. Typically,
where Congress has delegated regulatory authority to an executive agency—as it has in the case
of Section 361—the agency will interpret, in the first instance, the scope of its statutory authority
in issuing implementing regulations that carry out its delegated tasks.150 The process by which
agencies issue regulations is governed by the Administrative Procedure Act (APA), which—
among other requirements—sets forth the procedures for rulemaking and other agency actions.151
The APA also grants persons who have been adversely affected or aggrieved by agency actions
the right to seek judicial review of certain actions.152 The APA, in turn, directs federal courts to
“set aside agency action” that is “not in accordance with law” or “in excess of statutory
jurisdiction, authority, or limitations.”153 In other words, this statutory directive authorizes federal
courts to invalidate agency actions that exceed an agency’s statutory authorization or otherwise
violate the law, conferring upon the courts the role of assessing the agency’s interpretation of the
applicable statute.154
To provide context for the analysis of Section 361, this part provides a brief overview of the key
legal principles and doctrines that would govern or be relevant to a court’s review of CDC’s
invocation of its Section 361 authority. (More in-depth discussions of these principles may be
found in other CRS products.155)
Statutory Interpretation
The interpretation of federal statutes—whether preceded by agency interpretation or not—is the
process by which courts determine a law’s meaning by “giv[ing] effect to the intent of
Congress.”156 Under separation-of-powers principles, the Constitution gives Congress the power
to make the law and the judiciary “the power to pronounce the law as Congress has enacted it.”157
While the task of discerning congressional intent generally involves consideration of a law’s
“text, structure, purpose, and history,”158 judges subscribe to different theories of statutory
interpretation that emphasize or disfavor some of these available interpretive tools.159 This choice
can often affect the resulting interpretation.160

150 CRS Report R44954, Chevron Deference: A Primer, by Valerie C. Brannon and Jared P. Cole, at 1.
151 See, e.g., 5 U.S.C. § 553 (requirements for rulemaking), § 554 (requirements for agency adjudication), § 555
(requirements on ancillary matters such as the right to representative in appearances before an agency).
152 42 U.S.C. §§ 702, 704 (authorizing review of final agency actions).
153 Id. § 706(2)(A), (C).
154 United States v. Am. Trucking Ass’ns, Inc., 310 U.S. 534, 542 (1940).
155 Brannon & Cole, supra note 150; CRS Report R45153, Statutory Interpretation: Theories, Tools, and Trends, by
Valerie C. Brannon.
156 Am. Trucking Ass’ns, 310 U.S. at 542.
157 King v. Burwell, 135 S. Ct. 2480, 2505 (2015) (Scalia, J., dissenting).
158 Gen. Dynamics Land Sys. v. Cline, 540 U.S. 581, 600 (2004).
159 See Brannon, supra note 155 at 16–18.
160 Compare, e.g., Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 298 (2006) (applying a textualist
approach to hold that a statutory provision authorizing an award of “reasonable attorneys’ fees as part of the costs”
does not authorize the compensation of expert fees), with id. at 309 (Breyer, J., dissenting) (employing legislative
history as a tool of statutory interpretation to construe the provision to more broadly include expert fees as part of the
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In general, however, the statutory text and context serve as the starting point of statutory
interpretation.161 When the meaning of specific words in a statute is disputed, and the statute does
not define those words, courts generally begin the analysis by considering the “ordinary” meaning
of the statutory text.162 In addition to their own experiences as English speakers, judges often rely
on dictionary definitions, other judicial decisions, or official governmental materials as evidence
of a text’s ordinary meaning.163 Because words can often have multiple ordinary meanings
depending on the context, courts will generally interpret the disputed words within their full
statutory scheme.164 As part of this analysis, courts will generally take into account the remainder
of the provision and the statute overall, including how the same words may be used elsewhere in
the text, and whether certain constructions support or undermine the operation of the provision or
the stated purpose of the act.165 To facilitate this contextual analysis, and where the statutory text
alone may be ambiguous, courts will also often apply various “canons of construction” that have
developed over time to serve as guiding principles of statutory interpretation.166 Some canons are
grounded in rules of grammar, while others are grounded in general assumptions about how
Congress conveys meaning, or in longstanding judicial presumptions.167
For judges who follow the textualist168 theory of interpretation, a review of the statutory text and
context—aided by applicable canons of construction as needed—could generally be the
beginning and the end of statutory interpretation.169 Judges that take a more “purposivist”
approach to statutory interpretation, on the other hand, might also look beyond the statutory text
and into the statute’s legislative history to discern Congress’s purpose in enacting the disputed
law.170 Legislative history refers to the record of Congress’s deliberations when enacting the law,
including committee reports, sponsor statements, and colloquy in hearings.171 Under this theory of
statutory interpretation, Congress’s underlying purpose in enacting a statute—even if not
incorporated into the statutory language itself—can shed light on Congress’s intended meaning
for a provision.172 The Supreme Court has noted that legislative history materials that shed light
on the “considered and collective understanding of those . . . involved in drafting and studying
proposed legislation” are more reliable than materials such as floor debates that “reflect at best
the understanding of individual Congressmen.”173

statutory award of “reasonable attorneys’ fees”).
161 See Brannon, supra note 154, at 16–18.
162 See, e.g., Smith v. United States, 508 U.S. 223, 228 (1993) (“When a word is not defined by statute, we normally
construe it in accord with its ordinary or natural meaning.”).
163 Brannon, supra note 159, at 19–21.
164 See id.
165 See, e.g., King v. Burwell, 135 S. Ct. 2480, 2491, 2494 (2015).
166 Brannon, supra note 155, at 25.
167 For a discussion of canons of construction, see Brannon, supra note 155, at 25–31.
168 For a discussion about the dominant theories of statutory interpretation, see Brannon, supra note 155, at 10–16.
169 See id. at 18–31; CRS Report R46484, Understanding Federal Legislation: A Section-by-Section Guide to Key
Legal Considerations, by Victoria L. Killion, at 12–15.
170 See Brannon, supra note 155, at 11–13.
171 See id.
172 See id.
173 Zuber v. Allen, 396 U.S. 168, 186 (1969).
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Chevron Deference
In practice, a court’s interpretation of a statutory provision is often preceded by agency
interpretation that occurs during the course of the agency’s implementation of a statutory scheme.
Where the provision at issue is one the agency is charged with administering—as opposed to, for
instance, a statutory provision generally applicable to all agencies—the court will generally apply
the two-step framework outlined by the Supreme Court in Chevron U.S.A., Inc. v. Natural
Resources Defense Council.174 This analytical framework generally instructs courts to defer to
agencies’ reasonable interpretations of ambiguous statutory text.175 The deference is based in part
on agencies’ superior subject matter expertise—relative to courts—to address competing interests
within complex regulatory schemes.176 Although courts typically apply the Chevron framework to
agency interpretations formulated through formal procedures, such as notice-and-comment
rulemaking, courts also have discretion to accord deference to agency interpretations reached
through more informal means.177
The Two-Step Framework
At step one of the Chevron analysis, courts examine “whether Congress has directly spoken to the
precise question at issue,” using the “traditional tools of statutory interpretation.”178 Though
judges at times engage in different degrees of searching inquiry, they typically undertake the
statutory interpretation analysis described in the preceding section, looking first at the statutory
text, its ordinary meaning, and statutory context to determine the existence of any ambiguity.179
Some judges also take into account relevant legislative history and purpose as part of this
analysis.180 If Congress has spoken, “that is the end of the matter” and courts must enforce the
“unambiguously expressed intent of Congress.”181 If the statute is silent or ambiguous, however,
step two of Chevron instructs courts to defer to a reasonable agency interpretation of the statutory
text, even if the court would have otherwise reached a contrary conclusion.182 In evaluating the
reasonableness of an agency’s interpretation, courts take into account, among other
considerations, the sufficiency of an agency’s reasoning and whether the agency interpretation
comports with the overall purpose of the statute.183 In general, at least in the federal courts of
appeals, agency interpretations are typically accorded deference when a case is resolved at
Chevron’s second step, recognizing that an ambiguous statute inherently permits a range of
plausible interpretations.184

174 467 U.S. 837, 842–43 (1984).
175 See id. at 843–44, 865–66.
176 See id.
177 See Barnhart v. Walton, 535 U.S. 212, 222 (2002) (stating that several factors could be relevant in determining
whether Chevron deference applies to agency interpretation reached through less formal means, including such as “the
interstitial nature of the legal question, the related expertise of the Agency, the importance of the question to
administration of the statute, the complexity of that administration, and the careful consideration the agency has given
the question over a long period of time.”) .
178 See Chevron, 467 U.S. at 843 & n.9.
179 See Brannon & Cole, supra note 150, at 13–16.
180 See id.
181 Chevron, 467 U.S. at 842–43.
182 Id. at 844–45, 865–66.
183 Brannon & Cole, supra note 150, at 19–20.
184 Id. at 17.
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The Major Questions Doctrine
On several occasions, the Supreme Court has declined to accord Chevron deference to an agency
interpretation because the cases presented interpretive questions of such significance that “there
may be reason to hesitate before concluding that Congress . . . intended” to delegate resolution of
that question to the agency.185 The Court has not yet fully articulated the parameters of this so-
called “major questions” or “major rules” doctrine—phrases developed by legal academia and not
yet used by the Court itself.186 But at least two more recently appointed Justices—Justices Neil
Gorsuch and Brett Kavanaugh—have acknowledged the doctrine as a canon of statutory
construction established by the Court’s precedents.187 According to their characterization, this
canon—grounded in “the constitutional rule that Congress may not divest itself of legislative
power by transferring that power to an executive agency”188—presumes that Congress, absent
express and specific delegation, does not intend to grant agencies the power to fill in statutory
gaps concerning “a question of deep economic and political significance that is central to [a]
statutory scheme.”189
To date, the Court has not developed a settled approach to applying the major questions doctrine.
In King v. Burwell, the Court invoked the doctrine to deem the Chevron framework entirely
inapplicable, providing the basis for the Court to conduct the interpretive task anew.190 In the past,
however, the Court has primarily applied the doctrine within the Chevron framework. In some
instances, the Court invoked the doctrine to support its conclusion that the statute at issue, in the
Chevron step-one analysis, unambiguously precluded an agency’s interpretation.191 Other times,
the Court has invoked the doctrine to support its conclusion that the agency interpretation was
unreasonable at step two.192
Practically speaking, in most cases the invocation of the major questions doctrine results in the
Court’s conclusion that the agency exceeded its statutory authority.193 The Court has notably
invoked the doctrine to conclude that an agency exceeded its statutory authority in instances

185 FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159 (2000); see also, e.g., Util. Air Regul. Grp. v. EPA,
573 U.S. 302, 325–28 (2014).
186 See, e.g., Kevin O. Leske, Major Questions About the “Major Questions” Doctrine, 5 MICH. J. ENVTL. & ADMIN. L.
479, 480 n.3 (2016) (listing other scholarly labels for the doctrine and noting “the Court itself does not use a particular
name”).
187 See Gundy v. United States, 139 S. Ct. 2116, 2141–42 (2019) (Gorsuch, J., dissenting); Paul v. United States, 140 S.
Ct. 342 (2019) (statement of Justice Kavanaugh regarding the denial of certiorari).
188 See infra “The Nondelegation Doctrine.”
189 Gundy, 139 S. Ct. at 2141 (Gorsuch, J., dissenting); see also Paul, 140 S. Ct. at 342 (statement of Kavanaugh, J.)
(noting the Court has applied a “statutory interpretation doctrine” related to “major questions,” which requires
Congress to either “(i) expressly and specifically decide the major policy question itself and delegate to the agency the
authority to regulate and enforce; or (ii) expressly and specifically delegate to the agency the authority both to decide
the major policy question and to regulate and enforce”).
190 See King v. Burwell, 576 U.S. 473, 485 (2015) (holding that the task of interpreting the Affordable Care Act’s tax
credit provisions was the Court’s, and not the Internal Revenue Service’s, given that the provisions “involv[e] billions
of dollars in spending each year and affect[] the price of health insurance for millions of people”).
191 See, e.g., FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159 (2000); MCI Telecomm. Corp. v. AT&T
Co., 512 U.S. 218, 229–31 (1994).
192 See Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 325–28 (2014).
193 See MCI, 512 U.S. at 229–31 (holding that the Federal Communications Commission’s authority to “modify” the
requirement on common carriers to file tariffs with the Agency did not encompass the authority to effectively eliminate
the requirement—a major policy decision—for certain long-distance carriers that comprise approximately 40% of this
sector of the industry); see also infra notes 194–204 and accompanying text.
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where the agency newly sought to assert broad authority under a long-existing statute.194 In FDA
v. Brown & Williamson, for instance, the Court held that the FDA lacked statutory authority to
regulate tobacco products under the Federal Food, Drug, and Cosmetic Act (FD&C Act), which
grants general authority to the FDA to regulate, among other items, “drugs” and “devices.”195 In
concluding that Congress clearly precluded FDA from asserting jurisdiction to regulate tobacco
products, the Court relied in part on the “unique political history” of tobacco regulation, including
FDA’s prior, consistent disavowal of such jurisdiction since the adoption of the FD&C Act in
1938.196 The Court also relied on Congress’s decisions over the years to squarely reject legislative
proposals that would grant FDA such jurisdiction, and its repeated actions precluding any agency
from exercising significant policymaking authority in this area.197 Given this history and “the
breadth of the authority that the FDA has asserted” to regulate “an industry constituting a
significant portion of the American economy,” the Court was “confident that Congress could not
have intended to delegate a decision of such economic and political significance to an agency”
absent a clear mandate.198
The Court has also invoked the doctrine to reject an agency’s assertion of authority over a major
policy question when the agency lacks the relevant subject matter expertise. In Gonzales v.
Oregon, for instance, the Court held that the Attorney General lacked authority under the
Controlled Substances Act (CSA) to prohibit doctors from prescribing regulated drugs for use in
physician-assisted suicide, notwithstanding a state law permitting the procedure.199 In support of
this conclusion, the Court—among other considerations—reasoned that the government’s claimed
authority was inconsistent with the design of the statute.200 In the Court’s view, the authority
claimed by the Attorney General effectively amounted to the authority to make a rule “declaring
illegitimate a medical standard of care and treatment of patients that is specifically authorized
under state law.”201 The Court noted, however, that the CSA generally “allocates decisionmaking
powers . . . so that medical judgments . . . are placed in the hands of the [HHS] Secretary.”202 The
CSA’s structure thus “conveys unwillingness to cede medical judgments to an executive official
who lacks medical expertise.”203 Coupled with the Court’s general presumption that “Congress
intend[s] to invest interpretive power in the administrative actor in the best position to develop
these attributes,” the Court concluded that Congress would not have granted the Attorney General
“such broad and unusual authority” to make medical judgments absent a clear mandate,

194 See infra notes 195–198 and accompanying text. See also Util. Air, 573 U.S. at 325–28 (rejecting as unreasonable
the EPA’s assertion of authority under the Clean Air Act to impose certain permitting requirements on “millions of
small sources” and stating “[w]hen an agency claims to discover in a long-extant statute an unheralded power to
regulate ‘a significant portion of the American economy,’ we typically greet its announcement with a measure of
skepticism”).
195 Brown & Williamson, 529 U.S. at 125–26. The FDA sought to regulate tobacco products under the FD&C Act by
concluding that nicotine is a “drug” and cigarettes and smokeless tobacco are products that constitute a combination of
drugs and devices that deliver nicotine to the body. See id.
196 Id.
197 Id.
198 Id. at 160–61.
199 546 U.S. 243, 248–49, 275 (2006).
200 Id. at 265–66.
201 Id. at 258.
202 Id. at 265.
203 Id. at 266.
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particularly over a significant social and political issue issue—physician-assisted suicide—which
has been the subject of “an ‘earnest and profound debate’ across the country.”204
It remains to be seen whether and how the Court will further develop the major questions
doctrine. Under the Court’s existing case law, the doctrine could be viewed as a canon of
construction that limits the courts’ deference to agency interpretation under Chevron.205 The
doctrine could also be construed as a substantive outer limit on agency authority.206
In his dissent from the D.C. Circuit Court of Appeals’ decision to deny rehearing en banc in U.S.
Telecom Ass’n v. FCC, Justice Kavanaugh—then a judge on the D.C. Circuit—advanced the latter
construction.207 There, he articulated the parameters of the doctrine as follows: “For an agency to
issue a major rule”—i.e., a rule of “great economic and political significance”—“Congress must
clearly authorize the agency to do so.”208 If the statute “only ambiguously supplies authority for
the major rule, the rule is unlawful.”209 Whether a rule is a “major rule” depends on a number of
factors, including “the amount of money involved for regulated and affected parties, the overall
impact on the economy, the number of people affected, and the degree of congressional and
public attention to the issue.”210
Applying this formulation, then-Judge Kavanaugh would have invalidated FCC’s 2015 Open
Internet Order,211 under which FCC reclassified broadband internet service as a
telecommunications service subject to the common carrier regulation under the Communications
Act.212 In his view, the FCC Order was a major rule of “vast economic and political significance”
because (1) it would have had a “staggering” financial impact by “affect[ing] every Internet
service provider, every internet content provider, and every internet consumer”213; (2) it garnered
significant attention from Congress—which studied and debated the issue for years—and the
public—which submitted over four million comments on the proposed rule preceding the
Order.214 Accordingly, because “Congress has not passed a statute clearly classifying Internet
service as a telecommunications service or otherwise giving the FCC authority to impose

204 Id. at 267. In a case that did not involve the ultimate question of an agency’s scope of authority, the Court likewise
invoked the doctrine—based in part on the agency’s lack of relevant expertise over a major policy question—to hold
the Chevron framework inapplicable. See King v. Burwell, 576 U.S. 473, 479, 482 (2015). In King, the Court declined
to defer to the Internal Revenue Service (IRS)’s interpretation of the Affordable Care Act’s tax credits provisions,
given that the interpretative question at issue was one “of deep ‘economic and political significance’ that is central to
[the ACA’s] statutory scheme,” involving “billions of dollars in spending each year and affecting the price of health
insurance for millions of people,” and the IRS has “no expertise in crafting health insurance policy of this sort.” Id. at
486.
205 See supra notes 187–189 and accompanying text.
206 See U.S. Telecom Ass’n v. FCC, 855 F. 3d 381, 418–19 (D.C. Cir. 2017) (Kavanaugh, J., dissenting).
207 Id..
208 Id. at 419.
209 Id.
210 Id. at 422–23.
211 Id. at 417–18.
212 See U.S. Telecom Ass’n v. FCC, 825 F.3d 674, 689 (D.C. Cir. 2016). The common carrier regulation under Title II
of the Communications Act requires entities classified as common carriers to, among other things, furnish
communication service upon reasonable request, to engage in no unjust or unreasonable discrimination in charges and
practices, and charge just and reasonable rates. Id. at 691. Practically speaking, this means that internet service
providers classified as common carriers could not, for instance, block or otherwise impair access to certain lawful
internet content or applications, or prioritize certain internet traffic. See id. at 696.
213 U.S. Telecom Ass’n, 855 F. 3d at 423.
214 Id.
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common-carrier regulations on Internet service providers,” then-Judge Kavanaugh concluded the
FCC lacked the authority to issue this major rule.215 Since his elevation to the Supreme Court,
Justice Kavanaugh has reiterated an interest in further considering the bounds of the major
questions doctrine and its related principles as a substantive limit on Congress’s ability to
delegate “major national policy decisions” to executive agencies.216
The Nondelegation Doctrine
Another related legal doctrine potentially implicated by a broad delegation of authority to
agencies is the nondelegation doctrine, which limits Congress’s authority to delegate “legislative
power” to other entities.217 Under Article I, Section I of the Constitution, “[a]ll legislative
Powers”—which the Supreme Court has broadly defined as “the power to make laws”218—“shall
be vested in a Congress of the United States.”219 The Supreme Court has interpreted this
constitutional requirement, under the nondelegation doctrine, as generally prohibiting Congress
from delegating its legislative power to another branch.220 At the same time, however, the Court
has also recognized that the Constitution does not deny Congress “the necessary resources of
flexibility and practicality” that would enable it to perform its functions,221 or the ability to
“obtain[] the assistance of its coordinate Branches.”222 Thus, under the nondelegation doctrine, “a
statutory delegation of authority is constitutional so long as Congress ‘lay[s] down by legislative
act an intelligible principle to which the person or body authorized to [exercise the delegated
authority] is directed to conform.’”223
In its application of the nondelegation doctrine, the Supreme Court has upheld broad
congressional delegations to executive agencies as satisfying the “intelligible principle” test. The
Court has, for example, upheld delegations to the EPA to issue air quality standards that are
“requisite to protect the public health”224; to the FCC to issue licensing requirements required in
the “public interest, convenience, or necessity”225; and to the Interstate Commerce Commission (a
former executive agency charged with regulating railroads and other common carriers) to
authorize the acquisition of one railroad by another in the “public interest.”226 To date, the Court
has found the requisite intelligible principle lacking in only two statutes on the grounds that
Congress, in each case, “failed to articulate any policy or standard” to confine discretion.227 This

215 Id. at 426.
216 See Paul v. United States, 140 S. Ct. 342, 342 (2019) (statement of Kavanaugh, J.) (stating it may warrant further
consideration in future cases whether Congress could delegate to agencies the authority “to decide major policy
questions” at all, or whether Congress could delegate to agencies only “the authority to decide less-major or fill-up-the-
details decisions”).
217 See Whitman v. Am. Trucking Ass’n, 531 U.S. 457, 472–76 (2001).
218 Loving v. United States, 517 U.S. 748, 771 (1996).
219 U.S. CONST. art. I, § 1.
220 Mistretta v. United States, 488 U.S. 361, 371–72 (1989); see also Gundy v. United States, 139 S. Ct. 2116, 2123
(2019) (plurality).
221 Pan. Refin. Co. v. Ryan, 293 U.S. 388, 421 (1935).
222 Mistretta, 488 U.S. at 372.
223 Gundy, 139 S. Ct. at 2123 (quoting Mistretta, 488 U.S. at 372) (emphasis added).
224 Whitman v. Am. Trucking Ass’n, 531 U.S. 457, 474 (2001).
225 Nat’l Broad. Co. v. United States, 319 U.S. 190, 225–26 (1943).
226 N.Y. Cent. Sec. Corp. v. United States, 287 U.S. 12, 24 (1932).
227 See Panama Refining, 293 U.S. at 340 (invalidating a statutory provision authorizing the President to prohibit the
transportation of excess petroleum as an unconstitutional delegation because “Congress has declared no policy, has
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approach reflects the Court’s practical recognition that while Congress may not abdicate its
essential legislative functions, “Congress simply cannot do its job absent an ability to delegate
power under broad general directives” in “our increasingly complex society, replete with ever
changing and more technical problems.”228 This rationale—which is similar to the justification for
according Chevron deference229—assumes the agency delegated with authority possesses the
relevant subject matter expertise.230
The Supreme Court has also applied the nondelegation doctrine as a canon of statutory
construction “to giv[e] narrow constructions to statutory delegations that might otherwise be
thought to be unconstitutional.”231 In National Cable Television Ass’n, Inc. v. United States, for
instance, the Court considered a challenge against a thirty-cent per subscriber annual fee charged
by the FCC on community antenna television systems.232 The Agency imposed the fee based on a
provision of the Independent Offices Appropriation Act, which authorizes each federal agency
that provides any benefit or service of value to regulated entities to charge said entities a fee that
is “fair and equitable[,] taking into consideration direct and indirect cost to the Government, value
to the recipient, public policy or interest served, and other pertinent facts.”233 Although the
provision’s text plainly refers to multiple considerations, the Court held that “value to the
recipient”—and not the broader “public policy or interest served”—is the proper measure of the
authorized fee at issue.234 In the Court’s view, if agencies could exact “fees” based on broader
public interests—e.g., for performing their general oversight functions that inure benefits to the
public as opposed to specific regulated entities—the statute would impermissibly delegate to
agencies the authority to levy taxes.235 Because only Congress possesses the power to tax, the
Court said the Act must be read “narrowly to avoid constitutional problems.”236

established no standard, has laid down no rule”); A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 542
(1935) (invalidating a statutory provision allowing the President “virtually unfettered” authority to approve detailed
“codes of fair competition” submitted by one or more trade or industrial associations or groups that would govern all
business within an industry or trade as an “unconstitutional delegation of legislative power”).
228 Mistretta, 488 U.S. at 373. The Court’s jurisprudence on the nondelegation doctrine may, however, be evolving.
Before Justice Kavanaugh joined the Court, an eight-member Court considered in Gundy v. United States, 130 S. Ct.
2116 (2019), whether certain initial registration provisions of the Sex Offender Registration and Notification Act
(SORNA) impermissibly delegate legislative power to the Attorney General to specify SORNA’s applicability to pre-
Act offenders. Id. at 2122. While a majority of the Justices agreed SORNA does not, only a plurality of Justices agreed
that the relevant SORNA provisions do not violate the nondelegation doctrine. See id. at 2020. Although Justices Alito
and Kavanaugh did not or could not join the dissent, both have indicated a willingness to “to reconsider the approach
we have taking for the past 84 years.” See id. at 2131 (Alito, J., concurring in the judgment); see also Paul v. United
States, 140 S. Ct. 342 (2019) (statement of Kavanaugh, J.) (noting “Justice Gorsuch’s scholarly analysis of the
Constitution’s nondelegation doctrine in his Gundy dissent may warrant further consideration in future cases”).
229 See infra note 175 and accompanying text.
230 See Mistretta, 488 U.S. at 373; see also supra notes 224–226 and accompanying text.
231 See Mistretta, 488 U.S. at 373 n.7.
232 415 U.S. 336, 340 (1974).
233 Id. at 337–39.
234 Id. at 342–43.
235 Id. at 341–42.
236 Id. at 342. See also Indus. Union Dep’t, AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607, 646 (1980) (plurality)
(reasoning that § 6(b)(5) of the OSH Act, which authorizes OHSA to set workplace safety standards relating to toxic
materials, must be construed narrowly to require certain threshold risk assessments because the provision would
otherwise “make such a sweeping delegation of legislative power” as to render it unconstitutional).
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Analysis
Prior to the COVID-19 pandemic, the scope of agency authority under Section 361—and more
specifically, under subsection (a)—to issue regulations “necessary” to prevent the foreign and
interstate spread of communicable diseases was largely untested.237 Since Congress enacted the
provision as part of the PHSA in 1944, the agencies with delegated authority under Section 361
have historically invoked it in a limited way to issue regulations related to measures specifically
contemplated in the provision.238 The scale and nature of the COVID-19 pandemic have prompted
some commentators to call for the imposition of public health orders—such as orders relating to
movement restrictions and face masks—at the federal level.239 Commentators have considered
whether Section 361 could serve as the source of authority for such federal executive action.240
In September 2020, the CDC invoked its Section 361 authority to issue a national eviction
moratorium—an order preceded by a narrower eviction moratorium enacted by Congress as part
of its COVID-19 economic relief plan in the CARES Act.241 The CDC concluded that this
eviction moratorium was necessary to prevent the interstate spread of COVID-19 because it
would reduce homelessness and the need for individuals to relocate to new congregate living
settings.242 Landlords and their trade groups have filed several lawsuits to challenge this order on
various grounds, including that the CDC’s Order exceeds the Agency’s Section 361 authority.243
This use of Section 361 authority could raise larger questions about the CDC’s scope of authority
under this provision.244
Analysis of Existing Case Law on Section 361
In considering whether a CDC order exceeds the Agency’s authority under Section 361, a court’s
analysis will likely depend on the specific nature and scope of the order.245 In general, one of the
first interpretive questions is likely whether the statutory text unambiguously precludes the

237 See Wiley, supra note 25.
238 See supra notes 116–117 and accompanying text.
239 See Wiley, supra note 25; Haffajee & Mello, supra note 12.
240 See Wiley, supra note 25; Haffajee & Mello, supra note 12.
241 See supra notes 141–150 and accompanying text.
242 85 Fed. Reg. 55,292, 55,294–55,296 (Sept. 4, 2020).
243 See, e.g., Brown v. Azar, 2020 WL 6364310, at *6–10 (N.D. Ga. Oct. 29, 2020), appeal docketed, No. 20-14210
(11th Cir. Nov. 9, 2020); Chambless Enterp., LLC v. Redfield, 3:20-CV-01455, 2020 WL 7588849 (W.D. La. Dec. 22,
2020); Terkel v. Ctrs. for Disease Control & Prevention, No. 6:20-cv-00564, 2021 WL 742877 (E.D. Tx. Feb. 25,
2021), appeal docketed, No. 21-40137 (5th Cir. Mar. 3, 2021); Skyworks, Ltd. v. Ctrs. for Disease Control &
Prevention, No. 5:20-CV-02407, 2021 WL 911720 (N.D. Ohio Mar. 10, 2021);Tiger Lily LLC v. U.S. Dep’t of Hous.
& Urb. Dev., No. 21-5256, 2021 WL 1165170 (6th Cir. Mar. 29, 2021).
244 In addition to limits imposed by Section 361 itself, regulations and orders issued under the statute are also subject to
constitutional limits and other generally applicable statutory requirements, such as the Administrative Procedure Act.
At least one court considering the validity of CDC’s eviction moratorium invalidated it—as to the litigating plaintiffs—
on the grounds that the order exceeded the federal government’s Commerce Clause authority. See Terkel, 2021 WL
742877, at *10–11. The Terkel court concluded, among other considerations, that the regulated activity at issue—
eviction—does not substantially affect interstate commerce because (1) it pertains to the property owner’s possessory
interest and is therefore noneconomic and local in character, and (2) its relationship to interstate commerce as set forth
under the CDC order—which focuses on its public health effects—is attenuated. See id. at *5–10. Some of the
constitutional infirmities identified by the court may be lessened by placing the moratorium in the context of larger
national pandemic relief, as discussed infra, in “Possible Outer Limits on Agency Authority Under Section 361.”
245 See supra “Chevron Deference.”
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agency action in question.246 In cases challenging agency authority under Section 361, for
instance, plaintiffs have advanced a narrow construction of subsection (a) based on its text.247
Specifically, relying principally on semantic canons of statutory construction,248 these plaintiffs
argued that an agency’s authority to issue regulations “necessary” to prevent the spread of
communicable diseases is limited to measures similar to those enumerated in the subsequent
sentence in Section 361(a) (i.e., measures similar to those involving “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”).249 Several
courts have agreed with this construction.250 One court characterized the enumerated measures in
Section 361(a) as limiting agencies to issuing similar “property interest restrictions.”251 Another
described the limitation as measures aimed at “specific targets found to be sources of infection,”
but not those that would reduce “amorphous disease spread.”252
Other courts have rejected this narrow construction of Section 361(a). In Independent Turtle
Farmers of Louisiana, Inc. v. United States, for instance, the district court concluded that the
enumerated list in subsection (a) “does not act as a limitation upon the types of regulations that
may be enacted under Section 361,” given that it “directly precedes a ‘catch-all’ grant of authority
[that] allow[s] [agencies] to enact ‘other measures, as in [their] judgment may be necessary.’”253
In the court’s view, this structure indicates that the enumerated list is more appropriately

246 See supra “The Two-Step Framework.”
247 See infra note 250.
248 See Brown, 2020 WL 6364310 at *9–10 (noting plaintiffs argue “that several of the canons of construction (ejusdem
generis, expressio[] unius, noscitur a sociis and casus omissus)” compel a narrow reading of Section 361(a) that “limits
the CDC’s authority to measures involving inspection, fumigation, disinfection, sanitation, pest extermination and the
destruction of animals or articles believed to be sources of infection”); Chambless, 2020 WL 7588849, at *3 (similar).
For more information about these semantic canons of construction, see Brannon, supra note 159, at 54, 56.
249 42 U.S.C. § 264(a).
250 See Skyworks, Ltd. v. Ctrs. for Disease Control & Prevention, No. 5:20-CV-02407, 2021 WL 911720, *10 (N.D.
Ohio Mar. 10, 2021) (holding that Section 361(a) authorizes the CDC to take measures “reasonably of the type
Congress contemplated in the statutory text—fumigation, disinfection, destruction of animals or things” and does not
extend to an eviction moratorium); Tiger Lily LLC v. U.S. Dep’t of Hous. & Urb. Dev., No. 21-5256, 2021 WL
1165170, at *3 (6th Cir. Mar. 29, 2021) (similar).
251 Tiger Lily, 2021 WL 1165170, at *3. In Tiger Lily, the Sixth Circuit Court of Appeals considered the scope of the
CDC’s Section 361(a) authority within the context of the government’s procedural motion to stay a district court’s
earlier order pending appeal. See id. at *1. The U.S. District Court for the Western District of Tennessee had concluded
that the CDC’s eviction moratorium exceeded the Agency’s Section 361(a) authority and prohibited the Agency from
enforcing the moratorium in that District. See id.; see also Tiger Lily LLC v. U.S. Dep’t of Hous. & Urb. Dev., No.
2:20-cv-02692, 2021 WL 1171887, at *10 (W.D. Tenn. Mar. 15, 2021). In rejecting the government’s emergency
motion to stay the district court’s order, the Sixth Circuit largely agreed with the district court’s analysis, characterizing
the authority under Section 361(a) as limited to “property interest restrictions” and concluding the government did not
make a strong showing that it is likely to succeed on the merits. See Tiger Lily, 2021 WL 1165170, at *2–4. The Sixth
Circuit’s decision, however, does not reflect a final determination on the merits, which the court is expected to consider
following full briefing and oral argument from the parties. The court’s preliminary analysis is notable, however,
because it may preclude the CDC from continuing to impose certain existing transmission prevention regulations or
orders issued under Section 361(a) that arguably do not pertain to “property interest restrictions,” such as general
traveler health screening at ports of entry, reporting requirements to facilitate contact tracing, and testing requirements
for arriving travelers. See supra “Agencies’ Use of Section 361 Authority.”
252 Skyworks, 2021 WL911720, at *10; see also, e.g., Chambless, 2020 WL 7588849, at *3 (noting plaintiffs’ argument
that the enumerated measures listed in Section 361(a) limit the CDC to “conventional, localized disease-prevention
measures”); Josh Blackman, The Statutory Authority for the Nationwide Eviction Moratorium, VOLOKH CONSPIRACY
(Sept. 1, 2020), https://reason.com/volokh/2020/09/01/the-statutory-authority-for-the-nationwide-eviction-moratorium/.
253 703 F. Supp. 2d 604, 619 (W.D. La. 2010).
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construed as “suggest[ions]” of—as opposed to limits on—possible measures.254 In Brown v.
Azar, the district court generally adopted this construction, concluding that Section 361(a) reflects
“Congress’ unambiguous intent to delegate broad authority to the CDC” to take measures “it
deems reasonably necessary to prevent the spread of disease, so long as it determines that the
measures taken by any state or local government are insufficient to prevent the spread of the
disease.”255 Under this broad construction, each court concluded that the agency regulation or
order at issue—a turtle sale ban in the case of Independent Turtle Farmers and the eviction
moratorium in the case of Brown—did not exceed the agency’s Section 361 authority.256
This broad construction of Section 361(a), however, raises larger questions regarding the possible
outer limit on an agency’s discretion to implement measures “necessary” to prevent the interstate
spread of a communicable disease. Before the CDC issued the nationwide eviction moratorium,
for instance, many states had halted evictions to varying degrees as part of their pandemic
response.257 While states issued the moratoriums in part to reduce COVID-19 transmission, they
also halted evictions—as one court observed—to address certain “second-order economic effects”
of the pandemic.258 Namely, as states issued stay-at-home orders and the temporary closure of
non-essential businesses to curb the spread of COVID-19, many households began experiencing
financial difficulty as a result of the pandemic, affecting their ability to pay rent.259 To alleviate
this financial pressure—and to facilitate their residents’ ability to shelter in place—some states
halted certain evictions temporarily.260 Some states also took additional measures, such as
offering temporary forbearance on certain home mortgages and direct rental assistance payments
to landlords on behalf of certain tenants.261 Thus, in the context of the COVID-19 pandemic, an
eviction moratorium could be characterized as an economic regulation that also has the potential
public health effect of reducing transmissions.262 If a broad construction of Section 361

254 Id. at 619–20.
255 Brown v. Azar, 2020 WL 6364310, at *9 (N.D. Ga. Oct. 29, 2020), appeal docketed, No. 20-14210 (11th Cir. Nov.
9, 2020). See also Chambless, 2020 WL 7588849, at *5 (“This Court finds that the plain text of the statute is
unambiguous and evinces a legislative determination to defer to the ‘judgment’ of public health authorities about what
measures they deem ‘necessary’ to prevent contagion.”).
256 Ind. Turtle Farmers, 703 F. Supp. 2d at 619; Brown, 2020 WL 6364310, at *10. In Brown, the district court
considered the scope of CDC’s authority on the plaintiffs’ motion for preliminary injunction. Brown, 2020 WL
6364310, at *9–10. The court declined to enjoin the eviction moratorium after concluding—among other issues—that
the plaintiffs failed to demonstrate a likelihood of success on the merits as to their claim that the CDC eviction
moratorium exceeds the Agency’s Section 361 authority. Id. at *9–10. Plaintiffs have appealed the district court’s
denial of the preliminary injunction. See Brown v. Azar, No. 20-14210 (11th Cir. filed Nov. 9, 2020).
257 See infra note 258 and accompanying text.
258 See Elmsford Apart. Assoc., LLC v. Cuomo, 469 F. Supp. 3d 148, 156–57 (S.D.N.Y. 2020); Baptiste v. Kennealy,
No. 1:20-cv-11335-MLW, 2020 WL 5751572, at *8–9 (D. Mass. 2020) (noting state legislators commented that they
enacted Massachusetts’s eviction moratorium “to safeguard tenants and homeowners from economic insecurity during
and for a period after the state of emergency ends” and to promote housing stability to ensure that residents are able to
shelter in place); Auracle Homes, LLC v. Lamont, No. 3:20-cv-00829, 2020 WL 4558682 (D. Conn. 2020) (describing
various measures taken by the governor—including halting evictions, offering forbearance on certain mortgages, and
providing direct rental assistance payments—to “[h]elp[] Connecticut residents stay housed” during the pandemic). See
also Kathryn M. Leifheit et al., Expiring Eviction Moratoriums and COVID-19 Incidence and Mortality, at 4 (Nov. 30,
2020) (preprint pending peer review), available at https://ssrn.com/abstract=3739576 (noting that 43 states and the
District of Columbia temporarily halted evictions to varying lengths as part of their pandemic response).
259 See Elmsford, 469 F. Supp. 3d at 156–57.
260 See id.; Baptiste, 2020 WL 5751572, at *8–9; Auracle, 2020 WL 4558682, at *2–5.
261 See Auracle, 2020 WL 4558682, at *2–5.
262 See Baptiste, 2020 WL 5751572, at *8–9 (noting that the eviction moratorium facilitates shelter in place during the
pandemic); Auracle, 2020 WL 4558682, at *2–5 (noting that measures that reduce housing insecurity also help to
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encompasses the authority to issue such a regulation, it would conceivably encompass other
similar measures with potentially broad-reaching economic consequences, such as a federal
requirement to work remotely under specified conditions or a federal stay-at-home order.263 This
construction thus raises the question of whether Section 361—by authorizing delegated agencies
to take necessary measures to prevent and control transmission—clearly and expressly delegates
this broad authority.
The relevant statutory text and context—the starting point of statutory interpretation264—may
indicate certain ambiguities as to Section 361’s scope. While Section 361’s text indicates that the
enumerated list in subsection (a) is not an exhaustive list of possible “necessary” measures, the
context of Section 361 overall may nevertheless support a narrower reading of subsection (a).
Under the structure of Section 361, the seemingly broad grant of authority to issue “necessary”
regulations to curb transmission is followed by several examples of relatively discrete disease
control or prevention measures within subsection (a).265 The remaining subsections of Section
361 primarily set forth the CDC’s foreign and interstate quarantine and isolation authority,
including the authority to apprehend, examine, and detain “any individual” reasonably believed to
be infected with certain communicable diseases.266 The text of these subsections frames this
quarantine authority as another example of possible regulations issued under “this section”267 but
imposes certain additional safeguards to which these regulations are subject—including limiting
the exercise of this authority to certain specified communicable diseases and additional standards
with which these regulations must comply.268
Accordingly, Section 361’s structure could indicate that, insofar as Congress contemplated a use
of subsection (a) authority beyond the enumerated measures to permit the quarantine of
persons—itself a well-established disease control measure at the time of Section 361’s
enactment269—it subjected the exercise of such authority to some limits.270 In the context of
Section 361’s focus on quarantine authority and its parameters, the enumerated list under
subsection (a) could potentially be understood as a list of measures that facilitate or supplement
quarantine efforts.271 These considerations could suggest a narrower reading of Section 361(a)
that limits the authority to issue “necessary” regulations to measures related to quarantine or other
similar public health measures.
The larger context of the PHSA may further highlight this ambiguity. Different organizational
features of PHSA—including the titles and headings of Section 361 and its related provisions—

control and reduce the spread of COVID-19).
263 See Skyworks, Ltd. v. Ctrs. for Disease Control & Prevention, No. 5:20-cv-2407, 2021 WL 911721, at *10 (N.D.
Ohio Mar. 10, 2021) (noting that a broad reading of Section 361(a) “would authorize action with few, if any, limits—
tantamount to creating a general federal police power”).
264 See supra “Statutory Interpretation.”
265 42 U.S.C. § 264(a).
266 Id. § 264(b)–(d).
267 Id.
268 See id. § 264(b) (limiting the application of foreign and interstate quarantine and isolation authority to prevent the
spread of only communicable diseases designated by an executive order); id. § 264(d) (limiting the application of
interstate quarantine and isolation authority only to individuals “reasonably believed to be infected with a
communicable disease in a qualifying stage”).
269 See supra “Development of Relevant Federal Law Preceding Section 361.”
270 See id. § 264(b)–d).
271 See supra notes 100–101 and accompanying text.
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support conflicting interpretations of Section 361’s scope.272 On one hand, Section 361’s
heading—“Regulations to control communicable diseases”—suggests a broad authority. On the
other hand, this section is one of several provisions under a statutory part titled “Quarantine and
Inspection,” and several other provisions within this part refer to regulations issued under Section
361 as “quarantine laws.”273 These references point to a narrower interpretation of Section 361
under which quarantine and isolation authority is the principal, if not the maximum, authority
granted under the provision.
Possible Outer Limits on Agency Authority Under Section 361
To the extent Section 361’s text may be ambiguous as to the scope of delegated authority, and
depending on the scope of a particular agency order, certain canons of construction may supply
the relevant guiding principles that resolve the ambiguity. Under the major questions and
nondelegation doctrines, for instance, transmission control measures that implicate major political
and economic questions, or otherwise exceed agency expertise, may exceed the bounds of agency
discretion under Section 361.
As discussed above, the Supreme Court has applied the major question doctrine as a canon of
statutory construction to presume that Congress, absent express and specific delegation, does not
intend to grant agencies the power to fill in statutory gaps concerning questions of “deep
economic and political significance.”274 The Court has invoked the doctrine to conclude that an
agency exceeds its statutory authority when it seeks to assert a broad authority that it has never
before sought under a long-existing statute, or when the agency lacks the relevant subject matter
expertise.275 As to Section 361, this means that if a court concludes the provision is ambiguous as
to whether it delegates an invoked authority, a court might conclude that the scope of the CDC’s
discretion to order measures “necessary” to prevent the spread of COVID-19 may not extend to a
measure that implicates major economic and political questions (e.g., by impacting a significant
sector of an industry or addressing an issue long subject to congressional debate), even if the
measures could have the effect of reducing COVID-19 transmission.276 This may especially be
the case if the measure implicates a regulatory area over which CDC lacks subject matter
expertise and has traditionally not sought to exert authority.277
The CDC’s eviction moratorium, as an example, potentially implicates the application of these
principles. On one hand, the CDC might justify its eviction moratorium as an invocation of its
clear, broad delegation under Section 361 to issue any “necessary” regulations to stem COVID-19
transmission. A recent study of state-level eviction moratoriums concluded that lifting eviction
moratoriums was associated with increased COVID-19 incidence and mortality in those states,
“supporting the public health rationale for use of eviction moratoriums to prevent the spread of

272 While these organizational features cannot alter the meaning of clear statutory text, courts sometimes employ them
as an interpretive tool when considering an ambiguous provision. See Almendarez-Torres v. United States, 523 U.S.
224, 234 (1998) (‘“[T]he title of a statute and the heading of a section’ are ‘tools available for the resolution of a doubt’
about the meaning of a statute.” (quoting Bhd. of R.R. Trainmen v. Baltimore & Ohio R.R. Co., 331 U.S. 519, 529
(1947))); see also Killion, supra note 168.
273 See supra notes 43, 53, and 59 and accompanying text.
274 See supra “The Major Questions Doctrine.”
275 See supra notes 194–204 and accompanying text.
276 See id.
277 See id.
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COVID-19.”278 This study supports the CDC’s position that the moratorium is a public health
measure over which it has discretion to deem “necessary” to implement in order to curb the
interstate spread of COVID-19.279
On the other hand, as discussed in the preceding section, the scope of Section 361’s delegated
authority may be ambiguous.280 If so, courts may presume that Congress did not intend to
delegate to CDC the authority to impose a national eviction moratorium because the moratorium
may implicate questions of “deep economic and political significance” in housing policies for
which the CDC lacks the institutional expertise.
First, a national eviction moratorium may involve significant economic questions. By one
estimate conducted using Census data and other sources, an estimated 13 million to 17 million
renter households—or 29% to 43% of all renter households—were at risk of eviction by the end
of 2020 due to COVID-related job loss and economic hardship.281 Thus, the moratorium
potentially concerns not only a significant portion of the overall rental market, but also raises
other economic considerations, such as the accrual of unpaid rent, estimated to be in the range of
$25 billion to $70 billion. 282 Some commentators also observe that evictions may impose
additional potentially significant downstream public costs, such as the cost of providing
emergency shelters.283
Second, the policy questions implicated by a national eviction moratorium may be subject to
significant political debate, as the course of congressional action on this issue could indicate.284
As noted, the CDC order was preceded by a more limited eviction moratorium enacted by
Congress under the CARES Act, which applied only to rental properties receiving certain federal
assistance or federally related financing, and did not provide rental assistance.285 This more
limited moratorium arguably represented, at the time, an unprecedented action by the federal
government in an area of law that states and localities traditionally govern.286 The CDC issued the

278 See Leifheit et al., supra note 258, at 5.
279 Cf. Emily A. Benfer et al., Eviction, Health Inequity, and the Spread of COVID-19: Housing Policy as a Primary
Pandemic Mitigation Strategy, J. URBAN HEALTH (forthcoming 2020) (manuscript at 2–3) (stating that “[h]ousing
policy designed to prevent displacement and eviction can be a key component of a comprehensive strategy to address
health inequity and control the pandemic by reducing COVID-19 infection, transmission, illness, hospitalizations and
death”).
280 See supra “Analysis of Existing Case Law on Section 361.”
281 See McCarty & Perl, supra note 143.
282 See id.
283 See NAT’L LOW INCOME HOUSING COALITION, COSTS OF COVID-19 EVICTIONS 7 (Nov. 19, 2020), https://nlihc.org/
sites/default/files/costs-of-covid19-evictions.pdf (highlighting various potential eviction-related public costs, including
costs related to the provision of emergency shelters, increased stress on the child welfare system, and stress-related
medical needs).
284 Some commentators who oppose the moratorium, for instance, argue that landlords, which may include millions of
individual (as opposed to corporate) landlords, should not be forced to assume renters’ financial distress, and that the
moratorium may result in long-term adverse consequences for renters as landlords seek ways to recoup their loss of
rental income. See Scott Lincicome, The CDC Eviction Moratorium: An Epic Case Study in Very Bad Policy, CATO
INST. (Sept. 15, 2020), https://www.cato.org/publications/commentary/cdc-eviction-moratorium-epic-case-study-very-
bad-policy. Other commentators who support the moratorium argue the moratorium must be coupled with adequate
rental assistance and perhaps the development of a long-term housing voucher program that can provide rental
assistance in future pandemics and economic recessions. See NAT’L LOW INCOME HOUSING COALITION, supra note 280,
at 7.
285 15 U.S.C. § 9058.
286 See CRS Insight IN11320, CARES Act Eviction Moratorium, by Maggie McCarty and David H. Carpenter.
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broader moratorium in September 2020 shortly after the CARES Act moratorium expired, and
after congressional negotiations over another coronavirus relief plan stalled.287
As the pandemic and its associated economic effects persisted through 2020, Congress reached
agreement on a coronavirus relief plan in the Consolidated Appropriations Act, 2021 (CAA) in
December, as the CDC eviction moratorium was set to expire. The CAA not only legislatively
extended the CDC moratorium until January 31, 2021, but also provided emergency rental
assistance to certain renter households.288 This course of congressional action—wherein Congress
initially exercised a more limited authority, subsequently engaged in extended negotiations, and
eventually expanded the scope of the moratorium for a specified time period, while also
providing related monetary assistance to address the evolving pandemic, suggests the existence of
a substantial policy debate. This course of action could also be construed as demonstrating
Congress’s intent to exercise its legislative authority on this issue directly.289
Third, the CDC—as a public health agency—may lack specific expertise on both the economic
considerations and the policy implications of an eviction moratorium, including the scope of
housing assistance that should be provided within the context of the pandemic.290 Consistent with
the limits of their expertise, agencies that have been delegated authority under Section 361 have
never before sought to assert similarly broad-reaching authority.291
Together, these considerations may weigh in favor of a presumption that Congress did not intend
to delegate to CDC—through a long-existing provision of the PHSA—the power to halt
evictions.292 In the past, the Supreme Court has been reluctant to construe an agency’s statutory
authority, absent express delegation, as encompassing the authority to make significant policy
decisions—particularly those involving issues outside the agency’s core expertise—that affect a
substantial portion of a sector of an industry.293
The nondelegation doctrine may also separately require a more limited construction of Section
361. As discussed above, the Supreme Court, to date, has upheld broad congressional delegations

287 See, e.g., Congressional Negotiations Stall as President Threatens Executive Order on Evictions, NAT’L
MULTIFAMILY HOUSING COUNCIL (Aug. 7, 2020), https://www.nmhc.org/news/nmhc-news/2020/congressional-
negotiations-stall-as-president-threatens-executive-order-on-evictions/.
288 H.R. 133, 116th Cong. (2020).
289 Cf. FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 149–50 (2000) (reasoning that Congress’s history
of enacting certain tobacco-specific regulations evidenced an intent to limit regulatory authority over tobacco products
by federal agencies).
290 See supra “Agencies’ Use of Section 361 Authority.”
291 See id.
292 See supra notes 193–198 and accompanying text.
293 See supra notes 193, 199–204, and accompanying text. Assuming that CDC’s eviction moratorium exceeds the
Agency’s statutory authority, CAA’s legislative extension of the order potentially raises the question as to whether
Congress nevertheless ratified this exercise of agency authority. See Skyworks, Ltd. v. Ctrs. for Disease Control &
Prevention, No. 5:20-CV-02407, 2021 WL 911720, at *12 (N.D. Ohio Mar. 10, 2021) (stating that “Congress may
‘ratify acts which it might have authorized and give the force of law to official action unauthorized when taken’”).
Courts that have considered this argument to date have generally rejected it, concluding the CAA did not evidence a
clear intent to ratify agency action, at the very least not through the present. See id. (holding the CAA’s “limited
action” of changing the moratorium’s expiration date did not clearly ratify agency action when Congress did not amend
Section 361, and commenting that the extension “ma[de] sense” in the context of “facilit[ing] the transition between
presidential administrations”); Tiger Lily LLC v. U.S. Dep’t of Hous. & Urb. Dev., No. 21-5256, 2021 WL 1165170, at
*4 (6th Cir. Mar. 29, 2021) (concluding that “nothing in § 502 [of the CAA] expressly approved the agency’s
interpretation”).
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to executive agencies as satisfying the “intelligible principle” test.294 This approach, however,
assumes the agency delegated with authority has the relevant subject matter expertise to address
the “ever changing and more technical problems” of our “increasingly complex society.”295 This
suggests that even under the permissive “intelligible principle” test, the Court may not approve a
broad delegation of authority that exceeds an agency’s area of expertise.296 Thus, to the extent
Section 361 may be read broadly to encompass an authority—such as the authority for CDC to
order transmission control measures that implicate housing policies—the nondelegation doctrine
may operate to direct a narrower reading of the statute precluding this exercise of agency
authority.297
Plausible Constructions of Section 361
Assuming the major questions doctrine marks the outer limits of Section 361(a) authority, there is
still an interpretive question of whether Section 361 imposes any additional, unambiguous
limitations on the scope of its subsection (a) authority. If not, a court might consider whether an
agency’s interpretation of this provision is reasonable under Chevron Step Two.298
As discussed above, Section 361’s statutory text and context may be ambiguous as to the scope of
agency authority to issue “necessary” regulations to prevent the spread of communicable
disease.299 If a court looks to Section 361’s legislative history,300 the relevant history could
support at least two plausible readings of subsection (a). Comments by Section 361’s drafters
could be construed as limiting the scope of Section 361 authority to “quarantine and inspection,”
intended only to clarify or streamline various federal quarantine laws that preceded Section
361.301 Under this reading, the authority under Section 361(a) to issue “necessary” regulations
would be limited to “steps necessary in the enforcement of quarantine.”302 This reading could be
consistent with Section 361’s text, to the extent the enumerated list in subsection (a)—including
inspection, fumigation, and sanitation—could be characterized as measures that facilitate or
supplement quarantine efforts.303 Structurally, it may also be consistent with the use of
“quarantine law” as a shorthand reference to Section 361 in other PHSA provisions.304 Today,
such measures could encompass steps intended to facilitate the identification of quarantinable
individuals, such as testing and contact tracing.305

294 See supra “The Nondelegation Doctrine.”
295 See Mistretta v. United States, 488 U.S. 361, 372 (1989).
296 See supra notes 224–230 and accompanying text.
297 Cf. Gonzales v. Oregon, 546 U.S. 243, 266 (2006) (“Because historical familiarity and policymaking expertise
account in the first instance for the presumption that Congress delegates interpretive lawmaking power to the agency
rather than to the reviewing court, we presume here that Congress intended to invest interpretive power in the
administrative actor in the best position to develop these attributes.” (quoting Martin v. Occupational Safety & Health
Rev. Comm’n, 499 U.S. 144, 153 (1991))).
298 See supra “The Two-Step Framework.”
299 See supra “Analysis of Existing Case Law on Section 361.”
300 See supra “Statutory Interpretation.”
301 See supra notes 96–101 and accompanying text.
302 See supra note 100 and accompanying text.
303 See supra notes 265–271 and accompanying text.
304 See supra note 273–305 and accompanying text.
305 See supra notes 131–134 and accompanying text.
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On the other hand, the drafters’ comments on Section 361 could also support a broader reading
that authorizes the use of Section 361(a) to issue “necessary” regulations that implement any
evidenced-based public health measures that have been established as effective in preventing
transmission, such as quarantine, inspection, and other enumerated measures that were in use as
of 1944. While the drafters of Section 361 at times equated the authority under subsection (a) to
the authority to quarantine, they also emphasized that provisions were intentionally “written in
broader terms in order to cope with emergency situations which we cannot now foresee,”
signaling an intent to provide broader, more flexible authority to implement transmission control
measures that were not yet known.306 This intent is arguably consistent with the text of Section
361—which could have, but does not, expressly limit subsection (a) to quarantine or its related
measures, and instead, structures the quarantine-specific authorities under subsections (b) to (d)
as an example of one possible use of subsection (a) authority.307
In the context of the COVID-19 pandemic, this broader construction could potentially include a
federal requirement to wear face masks to prevent the interstate or foreign spread of the disease,
given that experimental and epidemiological data have shown that community use of masks is
effective at reducing the spread of SARS-CoV-2.308 There may be an open question as to whether
a federal mask mandate raises questions of “deep economic and political significance” that places
it outside the bounds of Section 361.309 While a mask mandate would not appear to impose any
significant economic impact, there is a public debate about whether state and federal governments
should require masks.310 Given the limited case law defining the parameters of a major economic
and political question, it is difficult to predict whether a public debate of this nature would give
rise to a legally cognizable major question.311 To date, however, the Court has seldom invoked the
major questions doctrine on an issue that lacked significant economic impact.312 In what appears
to be the only case when the Court has done so, the issue was physician-assisted suicide—a
practice that had been criminalized by many states for more than a century in the United States
and was the subject of more recent reexamination that entailed “an earnest and profound debate

306 See supra notes 107–109 and accompanying text.
307 See supra notes 45–51.
308 See, e.g., CTRS FOR DISEASE CONTROL & PREVENTION, SCIENTIFIC BRIEF: COMMUNITY USE OF CLOTH MASKS TO
CONTROL THE SPREAD OF SARS-COV-2 (Nov. 20, 2020), https://www.cdc.gov/coronavirus/2019-ncov/more/masking-
science-sars-cov2.html (summarizing studies). As noted supra in note 244, any regulations issued under Section 361
are also restricted by the Constitution and other generally applicable statutory requirements. Thus, the scope of a
federal mask mandate may be limited by the Commerce Clause, which authorizes the federal government to regulate
(1) channels of interstate commerce; (2) instrumentalities, persons, or things in interstate commerce; and (3) activities
that substantially affect interstate commerce. See United States v. Lopez, 514 U.S. 549, 558–59 (1995). On January 29,
2021, the CDC issued an order—effective February 1, 2021—that requires all passengers traveling on and all personnel
operating any conveyance (including airplanes, trains, subways, and buses), as well as any person while at any
transportation hub (including airports, bus terminals, and train station), to wear masks that cover the mouth and nose.
86 Fed. Reg. 8025, 8026 (Feb. 3, 2021). This order, which exempts private transportation operated for non-commercial
use, appears to invoke the federal government’s established authority to regulate channels, instrumentalities, and
intrastate economic activities that substantially affect interstate commerce. See CRS Legal Sidebar LSB10589, Legal
Issues Related to Transportation Mask-Wearing Mandates, by Bryan L. Adkins.
309 See supra notes 274–277 and accompanying text. As a point of contrast, a mandate related to vaccination—another
public health measure—may implicate more significant economic and political questions. See CRS Report R46745,
State and Federal Authority to Mandate COVID-19 Vaccination, by Wen W. Shen, at 7 & n.61.
310 See CRS Legal Sidebar LSB10530, Could the President or Congress Enact a Nationwide Mask Mandate?, by Wen
W. Shen, at 1–2.
311 See supra notes 205–216 and accompanying text.
312 See supra “The Major Questions Doctrine.”
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regarding its morality, legality, and practicality.”313 A mask mandate, in contrast, may not raise
underlying issues of a similar scale.314 Instead, most objections to mask mandates are generally
based on concerns regarding the infringement of individual liberty.315 This type of infringement is
generally inherent to many public health measures that control transmission, including
quarantine, which can impose more substantial liberty restrictions than face masks.316
To the extent Section 361 is subject to at least two plausible constructions based on its text,
structure, and legislative history,317 the provision is likely ambiguous as to its scope.318 If a court
agreed that the provision is ambiguous, it may conclude that under Chevron, the relevant agencies
have discretion to carry out their statutory duties under their reasonable interpretations of the
statute.319
Considerations for Congress
As illustrated by the states’ and the federal government’s responses to date, the COVID-19
pandemic presents a set of complex public health and economic challenges. To the extent
Congress determines that more coordinated federal action is necessary to address the pandemic, it
may wish to update Section 361 to clarify the agencies’ scope of authority to implement the
relevant public health orders at the federal level. Where a federal public health order may
implicate major economic or political questions, or a policy area outside the expertise of a public
health agency, Congress may need to act legislatively, within constitutional limits, to supply the
necessary additional authority. Even where an agency has existing authority to issue a federal
public health order, however, additional congressional action may be necessary to enhance the
enforcement of such an order. Congress may, for instance, amend Section 368 and related
provisions of the PHSA to provide a more flexible enforcement scheme to support the agencies’
exercise of their Section 361 authority.

313 See Gonzalez v. Oregon, 546 U.S. 243, 267 (2006) (citing Washington v. Glucksberg, 521 U.S. 702, 735 (1997)).
314 See, e.g., Antietam Battlefield KOA v. Hogan, 461 F. Supp. 3d 214, 223 (D. Md. 2020) (noting that plaintiffs asked
the court to enjoin several state orders—including a state mask mandate—because they “impose restrictions on
individual liberties”); Parker v. Wolf, No. 20-cv-1601, 2020 WL 7295831, at *15 n.20 (M.D. Pa. 2020) (noting the
state’s mask mandate and contact tracing program “are, at worse, minor and fleeting inconveniences, especially when
compared to the widespread infectiousness and death that [the governor, state attorney general, and secretary of health]
credibly seek to avoid through these two orders”).
315 See Antietam Battlefield, 461 F. Supp. 3d at 223.
316 See Liberian Comm. Ass’n of Conn. v. Lamont, 970 F.3d 174, 187 (2d Cir. 2020) (noting plaintiff’s argument that
quarantine is “a form of civil detention” that implicates fundamental liberty interests, but distinguishing quarantine
from other forms of civil detention because it “involv[es] different public safety concern and implicat[es] different
liberty interests”).
317 Compare, e.g., Tiger Lily LLC v. U.S. Dep’t of Hous. & Urb. Dev., No. 21-5256, 2021 WL 1165170, at *3 (6th Cir.
Mar. 29, 2021, with Brown v. Azar, 2020 WL 6364310, at *6–10 (N.D. Ga. Oct. 29, 2020).
318 See King v. Burwell, 576 U.S. 473, 489 (2015) (noting the ACA’s tax credit provision is subject to two
constructions—one limiting it to the state exchanges and the other encompassing both state and federal exchanges—
and is thus “properly viewed as ambiguous”).
319 See supra “The Two-Step Framework.”
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Scope of CDC Authority Under Section 361 of the Public Health Service Act (PHSA)

Author Information

Wen W. Shen

Legislative Attorney

Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan
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under the direction of Congress. Information in a CRS Report should not be relied upon for purposes other
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