The US Congress can't just delete every single authority of the legislative and executive branch to the Surgeon General, a single sentence about "and other measures" cannot allow a Surgeon General to assume complete power.
This is where judicial interpretation comes into play with these laws. Congress writes bad laws sometimes.
Because the list ends with "and other measures, as in his judgment may be necessary.", and the text forces you believe that either a) the federal government intended to express a belief (in the same bill that officially gives the federal government quarantine authority) that disease could be contained via sanitation and pest control, or that b) they intended to give the Surgeon General a lot of latitude.
The mortgagee in that case applied to the court for relief, and had to make ongoing payments during the period that relief was granted. The relief did not put the creditor at a substantial risk of bankruptcy.
If the regulation was tested, I think it would have survived the constitution. But I don’t think all of the conditions of it would. I’m skeptical that the criteria for qualifying, and the process for applying would have passed, and I think SCOTUS would probably expect more clarity on the obligations of applicants (ie around partial payments).
The constitution still exists during an emergency, and there’s still a bar that must be met when infringing upon the rights it grants. But SCOTUS tends to avoid ruling on the constitutionality of a law in cases where the simpler explanation is that the law was not appropriately applied.
I'm not sure how these are related to due process and the fifth amendment so I don't see how they would distinguish the two cases. Under the CDC moratorium eviction, tenants still needed to show the appropriate degree of financial hardship.
> But SCOTUS tends to avoid ruling on the constitutionality of a law in cases where the simpler explanation is that the law was not appropriately applied.
They're not arguing about that, because to do so would require something resembling a consensus on what the actual law is. They're arguing about statutory interpretation. The main thread of the dissent in Alabama Assn. of Realtors was that "[T]o make and enforce such regulations as in [its] judgment are necessary to prevent the introduction, trans-mission, or spread of communicable diseases [inter-state]." means exactly what it says.
They seem to be the most obvious areas to appeal for a judicial review. According to the case law, all of the following have to be considered:
* The impact to the property owner
* Whether the compensation is just
* The level of due process afforded
* The overall rationality of the policy
The fact that the process doesn’t consider the financial impact to the landlords is an obvious point of contention. The fact that it essentially applied to all tenants, regardless of their circumstances, was a very extreme compromise of due process, and could be seen as undermining the rationale of the entire policy. The fact that tenants were not compelled to make the payments that they could afford to make undermines the justness of the compensation, and further undermines due process.
Just because the state has the power to infringe upon your rights in an emergency, doesn’t mean they can do whatever they want. The avenues from which you could approach a judicial review of the policy are perfectly obvious. Even if the moratorium itself is constitutional, there’s plenty of implementation details that are absolutely not obviously constitutional.
"The Surgeon General, 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."
While it's true that the majority wasn't willing to separate the first and second sentences, the decision was along party lines, and it just does not seem reasonable to me that a federal law intended to give the HHS "responsibility for preventing the introduction, transmission and spread of communicable diseases from foreign countries into the United States" would limit the authority granted in the section "Regulations to control communicable diseases" to nothing more than fumigation and pest control.