Scope of CDC Authority Under Section 361 of the Public Health Service Act (PHSA) [April 13, 2021] [open pdf - 1MB]
From the Summary: "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. [...] 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."
CRS Report for Congress, R46758
Congressional Research Service: https://crsreports.congress.gov/