Follow the Science . . . Toward Tyranny   

Modern science as a discipline carries within itself the seeds of tyrannical rule, for the scientific method requires controlled experiments. But human beings want to be free and reject rules they did not create. Applied directly to society, the methods of natural science would destroy the ways of a free nation.

Of course, free men and women use science to uncover knowledge and apply it to improve the human condition. Today the crucial distinction between following science and using it is lost on people and politicians. Without observing that difference, Americans might readily confuse their need for science with a dangerous embrace of the tyranny it demands when imprudently applied to human behavior.

Now comes the U.S. Supreme Court espying tyranny in a bureaucratic Centers for Disease Control (CDC) regulation preposterously claiming to prevent the spread of COVID-19. Perhaps the court caught some anti-tyranny virus, for just 48 hours before, it denied the bureaucracy the ability to preserve and enhance the Deferred Action for Childhood Arrival (DACA) program—which allows “Dreamers” to remain in the United States illegally and indefinitely. Whatever the epidemiology of its jurisprudence, the court’s unsigned per curiam opinion in Alabama Association of Realtors v. HHS has exposed the tyranny of the administrative state. Both the CDC and the DACA examples illustrate the extent to which the federal government is governed not by an elected congress or president, or even the unelected courts but by the administrative state, the nexus of bureaucracy, academia, and media that effectively rules America on behalf of increasingly leftist policies. 

The allegedly anti-COVID regulation is quicker to analyze and ridicule and better illustrates the vices of the administrative state.

First, the CDC justification for regulation of any activity that might contribute to the spread of disease rests on one assertion: because COVID. But government agencies must justify their powers on the basis of a law. In this instance, the court declared, “It strains credulity to believe that this [1944] statute grants the CDC the sweeping authority that it asserts.”  Specifically, the CDC “has imposed a nationwide moratorium on [housing] evictions in reliance on a decades-old statute that authorizes it to implement measures like fumigation and pest extermination.”  

The CDC has enough trouble with the science behind diseases. But when it comes to evictions and COVID the surgeon general and the secretary of the Department of Health and Human Services concur.It’s bad enough that the CDC has the power to order the destruction of all the cattle in Texas to prevent the spread of a disease. But the Biden Administration, on top of this, also argued that the CDC has the power to act to mitigate concern that renters forced out of their apartments might spread COVID to homeless shelters and people on the streets. Therefore, the administration argued, renters must be allowed to stay in their homes as a means of preventing the spread of this infectious disease.  

In response to this astonishing reasoning, the six-member majority sneered, “Could the CDC, for example, mandate free grocery delivery to the homes of the sick or vulnerable? Require manufacturers to provide free computers to enable people to work from home? Order telecommunications companies to provide free high-speed Internet service to facilitate remote work?”

The three dissenting justices, in a flabby opinion by Justice Stephen Breyer, joined by Justices Sonia Sotomayor and Elena Kagan, could only whimper about the CDC’s having  revised its eviction guidelines and plead the necessity for “a full briefing and argument . . . We should not set aside the CDC’s eviction moratorium in this summary proceeding.” 

Unmentioned in both opinions are the penalties for violating the moratorium: “criminal penalties of up to a $250,000 fine and one year in jail.” 

As the court maintains, “It is hard to see what measures this interpretation would place outside the CDC’s reach, and the Government has identified no limit . . . beyond the requirement that the CDC deem a measure ‘necessary.’” 

The deadbeat renter, whatever his motives for withholding his rent,   may spread disease by being forced to mingle in the streets. The authority to subsidize renters reminds one of the farmer in Wickard v. Filburn who was fined for exceeding his planting quota by growing wheat to feed his chickens. The court’s opinion concludes, “ . . . our system does not permit agencies to act unlawfully even in pursuit of desirable ends. Cf. Youngstown Sheet & Tube Co. v. Sawyer.” 

Professor Josh Blackman contends this mention of the infamous steel seizure case, when President Harry Truman seized steel mills to keep them operating during the Korean War, is a tell that the per curiam was authored by Chief Justice Roberts. In fact, Truman’s lawless action there and the CDC power grab have different motives, as the “Cf.” may indicate. 

Roberts, no friend of the administrative state, wants to make the CDC an extremist in our day, as Truman was then. But at least Truman tried, however spuriously, to claim patriotism as his motive.

Moreover, the Biden CDC ignores basic economics, as the majority notes: 

The moratorium has put the applicants, along with millions of landlords across the country, at risk of irreparable harm by depriving them of rent payments with no guarantee of eventual recovery. Despite the CDC’s determination that landlords should bear a significant financial cost of the pandemic, many landlords have modest means. And preventing them from evicting tenants who breach their leases intrudes on one of the most fundamental elements of property ownership—the right to exclude.

Of course, the homeless renters here may have been fully vaccinated, but that won’t lose them their federal benefits. Indeed, where will landlords pay the semiannual taxes they owe on their property? 

Ultimately, the Congress might well propose a law that would bail out renters and landlords both. In the meantime, perhaps Facebook, Twitter, and other social media will declare this Supreme Court opinion to be against the CDC guidelines and therefore disseminating it must be banned. Because they follow the science.




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About Ken Masugi

Ken Masugi, Ph.D., is a distinguished fellow of the Center for American Greatness and a senior fellow of the Claremont Institute. He has been a speechwriter for two cabinet members, and a special assistant for Clarence Thomas when he was chairman of the Equal Employment Opportunity Commission. Masugi is co-author, editor, or co-editor of 10 books on American politics. He has taught at the U.S. Air Force Academy, where he was Olin Distinguished Visiting Professor; James Madison College of Michigan State University; the Ashbrook Center of Ashland University; and Princeton University.

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