The Supreme Court’s recent decision in Alabama Association of Realtors v. Department of Health and Human Services was not a Foreign Corrupt Practices Act case.
Nor was the issue presented even remotely related to the FCPA.
Nevertheless, the case was FCPA relevant because once again the Supreme Court rejected an expansive statutory interpretation by an administrative agency and reminded the legal community of the following basic points: a law means what it says and what Congress intended it to mean – not what an administrative agency wishes a law said – and that if an administrative agency doesn’t like this the remedy is for Congress to take action.
In the decision, the Supreme Court essentially struck down the CDC’s “nationwide moratorium on evictions of any tenants who live in a county that is experiencing substantial or high levels of COVID–19 transmission and who make certain declarations of financial need.”
As stated by the Court:
“The CDC relied on §361(a) of the Public Health Service Act for authority to promulgate and extend the eviction moratorium. That provision states:
“The Surgeon General, with the approval of the [Secretary of Health and Human Services], 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.”
Originally passed in 1944, this provision has rarely been invoked—and never before to justify an eviction moratorium. Regulations under this authority have generally been limited to quarantining infected individuals and prohibiting the import or sale of animals known to transmit disease.”
In the words of the court:
“It would be one thing if Congress had specifically authorized the action that the CDC has taken. But that has not happened. Instead, the CDC has imposed a nationwide moratorium on evictions in reliance on a decades-old statute that authorizes it to implement measures like fumigation and pest extermination. It strains credulity to believe that this statute grants the CDC the sweeping authority that it asserts.”
In closing, the court stated:
“It is indisputable that the public has a strong interest in combating the spread of the COVID–19 Delta variant. But our system does not permit agencies to act unlawfully even in pursuit of desirable ends. […] It is up to Congress, not the CDC, to decide whether the public interest merits further action here.”
