The [CDC], 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 [Secretary] 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.
One source of controversy is the degree to which the second sentence limits the first -- that is, whether the regulations which "in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases," mentioned in the first section, are only things like "inspection, fumigation, disinfection [etc.]" listed in the second sentence. But accepting that they are, the eviction moratorium may still fall under the unenumerated "other measures" mentioned at the end of the sentence. On that point, the key question is what sorts of regulations can be justified as "other measures". Here's what the district court said on that question:
These enumerated measures are not exhaustive. The Secretary may provide for “other measures, as in his judgment may be necessary.” But any such “other measures” are “controlled and defined by reference to the enumerated categories before it.” These “other measures” must therefore be similar in nature to those listed in § 264(a). And consequently, like the enumerated measures, these “other measures” are limited in two significant respects: first, they must be directed toward “animals or articles,” and second, those “animals or articles” must be “found to be so infected or contaminated as to be sources of dangerous infection to human beings.”
The court is correct that the contours of a catch-all clause at the end of a list, like "other measures", must be interpreted by the enumerated categories actually listed (this is known as the ejusdem generis canon). But in saying that the "other measures" must be directed towards "animals or articles", the court seems to misinterpret the basic grammar of the statute.
Let's look at the text again.
For purposes of carrying out and enforcing such regulations, the [Secretary] 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.
One way of reading this list is to say the secretary is empowered to do seven separate things: (1) inspection, (2) fumigation, (3) disinfection, (4) sanitation, (5) pest extermination, (6) destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and (7) other measures. Each of these are separate entries in the list of items which "in his judgment may be necessary" and don't otherwise modify one another. Broken down, the statute would be read like this:
For purposes of carrying out and enforcing such regulations, the [Secretary] may provide for such
(1) inspection,
(2) fumigation,
(3) disinfection,
(4) sanitation,
(5) pest extermination,
(6) destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and
(7) other measures,
as in his judgment may be necessary.
(Notice that I didn't change the word order of the statute at all -- I just added numbering, indents, and line breaks).
But the district court seems to read this passage differently. It thinks that all the entries on the list are actually modifiers of "animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings". So the Secretary can provide for "inspection ... of animals or articles found to be so infected...", "fumigation ... of animals or articles found to be so infected...", "disinfection ... of animals or articles found to be so infected ..." and so on -- and consequently the "other measures" must also be things done to "animals or articles found to be so infected." Understood this way, the statute would be organized like this:
For purposes of carrying out and enforcing such regulations, the [Secretary] may provide for such
(1) inspection,
(2) fumigation,
(3) disinfection,
(4) sanitation,
(5) pest extermination,
(6) 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.
But this is a very awkward and I think obviously incorrect reading, for several reasons.
First, not all the elements of the list naturally modify "animals or articles found to be so infected ...". Certainly it makes sense to engage in "inspection of animals or articles found to be so infected or contaminated as to be sources of dangerous infection", or "destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection." But it's quite awkward to speak of engaging in "pest extermination of animals or articles ...." or "fumigation of animals or articles" (can you fumigate an animal?). That's a hint that these terms are meant to stand alone and not be attached to "animals or articles."
Second, if "destruction" is the last element of the list of things modifying "of animals found to be so infected ...", then it should be preceded by an "and" or an "or" -- something like this:
For purposes of carrying out and enforcing such regulations, the [Secretary] may provide for such
(1) inspection,
(2) fumigation,
(3) disinfection,
(4) sanitation,
(5) pest extermination, or
(6) 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.
That "or" may be small, but it is crucial -- it's what makes all of the preceding list elements relate to "animals or articles" and so generate the implication that "other measures" must connect to "animals or articles" as well. Consider the following sentence:
You can walk, swim, run for a mile, and engage in other forms of exercise to stay fit.
The most natural way of breaking that down is:
You can
(1) walk,
(2) swim,
(3) run for a mile, and
(4) engage in other forms of exercise
to stay fit.
"Other forms of exercise" would be interpreted to be things akin to walking, or swimming, or running for a mile -- so rowing I'd say is probably in, while "brain teasers" probably isn't.
But let's say I intended "for a mile" to modify not just "run" but all the preceding elements of the list ("walk for a mile", "swim for a mile", and "run for a mile"). At the very least, I'd need an "and" or "or" before "run":
You can
walk,
swim, or
run
for a mile,
and engage in other forms of exercise
to stay fit.
Without that "or", the sentence is grammatically improper if it's meant to be structured this way (it'd be like if I said "You can walk, swim, run for a mile to stay fit." There the missing "or" really stands out).
That tees up the third problem -- if "and other measures" is meant to be the last item in the list of measures that are directed at "animals or articles", then the text is out of order. You can already spot that in our exercise sentence with our awkward extra indent for "and engage in other forms of exercise". In that sentence, if we wanted "engage in other forms of exercise" to be the last element of the list of activities one can do "for a mile to stay fit," the sentence would more naturally be drafted like this:
You can
walk,
swim,
run,
and engage in other forms of exercise
for a mile to stay fit.
Written this way, then it would be sensible to say that these other forms of exercise must also be done "for a mile" (and perhaps, further limits the exercises to the sorts of exercises which can be done for a mile -- so rowing still works, but weightlifting does not).
Likewise, if we wanted "and other measures" to be the last part of the list, all of whose components which are meant to be tied to "animals or articles", then it is in the wrong order. The text should read:
For purposes of carrying out and enforcing such regulations, the [Secretary] may provide for such
(1) inspection,
(2) fumigation,
(3) disinfection,
(4) sanitation,
(5) pest extermination,
(6) destruction,
(7) and other measures
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.
But the text doesn't say that (partially because the grammar doesn't work, because one can't really have "other measures of animals or articles found to be...", which is yet another reason why this reading is suspect -- really, the better way to go about it would have been to just put the "and" or "or" before "destruction").
Put that all together, and the district court's view that "other measures" must be "directed toward 'animals or articles ... found to be so infected or contaminated as to be sources of dangerous infection to human beings'" seems difficult to square with the text at hand.
What difference does this make? Well, recall the key question is whether an eviction moratorium is sufficiently similar to the enumerated items in the list so that it can be reasonably included under "other measures". If all elements of the list must be "directed toward 'animals or articles ... found to be so infected or contaminated as to be sources of dangerous infection to human beings'", then it's fair to conclude, as the district court did, that an eviction moratorium is rather far afield from the enumerated contents. An eviction is not an animal or an article, after all.
But if "animals or articles found to be so infected ..." is tied to only one entry in the list ("destruction", as in "destruction of animals or articles ..."), then the the overall content of the list is much broader. The relevant question becomes whether an eviction moratorium is sufficiently similar to things like inspection, fumigation, disinfection, sanitation ... etc. etc.
So: is it? I'm not sure, honestly (as I said at the top -- I don't think the argument that the eviction moratorium is not authorized by Section 264 is utterly frivolous). Clearly, there are differences between things like inspections or sanitation versus an eviction moratorium. On the other hand, if they were the same, then we wouldn't need the "other measures" catch-all to expand the Secretary's authority. The point of having an "other measures" clause is to permit the Secretary to do things that aren't included in the explicitly enumerated list. And ensuring people have the ability to stay in place during a highly contagious pandemic doesn't strike me as being so utterly disconnected from things like "sanitation" or "inspection" that it fails the ejusdem generis canon (if the "other measures" the Secretary proposed was, say, changing the lyrics of our national anthem to "Please spare us from the dreaded 'rona!", that would be an example of such a disconnect).
Ultimately, I think the better argument is that the Secretary should get deference here. At the very least, I think the district court was wrong in claiming the text is "plain" in demonstrating the impermissibility of the eviction moratorium, and it's worrisome that the court's reasoning to the contrary seems to rely on a basic misreading of the text itself. I worry that there may be, unfortunately, a wave of judges who think of themselves as hard-nosed textualists but who don't always do a good job reading texts, and the result often is the smuggling in of ideological or partisan biases under the guise of austere, legalistic decision-making.
No comments:
Post a Comment