Biden Administration Should Lose Its Mask Mandate Appeal – Commentary

The Justice Department has filed what hopefully is a doomed appeal of a federal judge’s order Monday vacating the federal mask mandate for airline, train, and bus passengers.

District Court Judge Kathryn Kimball Mizelle of Florida ended what had become a severe (and unjustified) annoyance to travelers, judging by the cheers that erupted on flights across the country when she issued her decision in Health Freedom Defense Fund v. Biden.

If the 11th U.S. Circuit Court of Appeals follows the law, the Biden administration will lose again because, contrary to the claims of critics who are busy attacking her personally, Mizelle’s opinion is well researched and well written.

Her opinion also follows precedent, including the Supreme Court’s holding last year in Alabama Association of Realtors v. HHS. In that case, the Supreme Court squelched the nationwide moratorium imposed by the Centers for Disease Control and Prevention on eviction of tenants during the COVID-19 pandemic, saying that the CDC was trying to use “a decades-old statute that authorizes it to implement measures like fumigation and pest extermination.”

As the Supreme Court concluded, “[i]t strains credulity to believe that this statute grants the CDC the sweeping authority that it asserts.”

That is important because the Centers for Disease Control and Prevention relied on the very same statute to justify its issuance of a regulation on Feb. 3, 2021, requiring masks on all public transportation and in airports and train stations.

That statute is the 1944 Public Health Services Act. In order to prevent the transmission of communicable diseases, the CDC has the authority under 42 U.S.C. §264(a) to require “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 the [CDC’s] judgment may be necessary.”

As Mizelle points out, the Supreme Court said in its Alabama Association of Realtors decision that this provision has “generally been limited to quarantining infected individuals and prohibiting the import or sale of animals known to transmit disease.”

Masks for Sanitation?

The government admitted that wearing a mask is not inspection, fumigation, disinfection, or pest extermination. Instead, it argued that the mask mandate falls within the “sanitation” or “other measures” language of the statute.

To determine what the word “sanitation” meant in 1944, when Congress passed this statute, Mizelle consulted dictionaries and researched “the statute’s context, including the surrounding words, the statute’s structure and history, and common usage at the time.” That included using a form of language analysis called “corpus linguistics,” which searches “a database of naturally occurring language.”

Her analysis led the judge to the straightforward conclusion that “sanitation” means “active cleaning” and is limited to cleaning “property.”

“Wearing a mask cleans nothing,” Mizelle said.

Moreover, the “other measures” language is limited by the words that come before it and mean measures similar to “inspection, fumigation, disinfection, sanitation, [or] pest extermination.” That language can’t be used to expand the government’s power exponentially, since such an interpretation would render the rest of the statute meaningless.

Not Following the Rules

Mizelle also found that the Centers for Disease Control and Prevention made two mistakes that violated the Administrative Procedure Act, the federal statute that governs the issuance of new regulations by government agencies such as the CDC.

The Administrative Procedure Act requires that the public be given the opportunity to review and comment on proposed regulations, a step the CDC skipped entirely.  This is particularly important, Mizelle ruled, when a regulation poses the “threat of civil and criminal penalties—or at a minimum, ejection from the conveyance or transportation hub.”

The CDC tried to excuse this by claiming a “good cause” exception in the statute, something the courts have said should be “narrowly construed and only reluctantly countenanced.” The exception applies only in emergency situations or where delay could result in serious harm and requires an agency to provide an explanation of why public notice is “impracticable” or “contrary to the public interest.”

Here, the CDC failed to provide such an explanation, simply claiming that the exception was applicable because of the “public health emergency caused by COVID-19.”

This was in sharp contrast to many cases cited by Mizelle in which government agencies had given detailed explanations and reasons for invoking the exception. In fact, as the judge pointed out, when the CDC issued this regulation mandating masks for many travelers, we already were almost a year into the COVID-19 pandemic and “case numbers were decreasing.”

It was 11 months after President Donald Trump declared COVID-19 to be a national emergency and 13 months since the secretary of the Department of Health and Human Services declared a public health emergency.

This “timing undercuts the CDC’s suggestion that its action was so urgent that a thirty-day comment period was contrary to the public interest,” Mizelle said, and the CDC’s “failure to explain its reasoning is particularly problematic.”

“Arbitrary and Capricious”

In addition to violating the Administrative Procedure Act’s notice and comment requirement, Mizelle found that the mask mandate is “arbitrary and capricious” because the CDC failed to adequately explain its reasoning for why the mandate was required and why numerous exceptions were included in the regulation.

Under the Administrative Procedure Act, it is a violation to issue a regulation arbitrarily and capriciously without “reasoned decisionmaking.”

As Mizelle said, the CDC “provides little or no explanation” for its mask mandate and “omits explanation for rejecting alternatives and for its system of exceptions.”

And the regulation contains so many exceptions to the requirement to wear a mask “that the overall efficiency of masking on airplanes or other conveyances could reasonably be questioned.”

The Centers for Disease Control and Prevention doesn’t discuss the alternatives to masking such as “testing, temperature checks, or occupancy limits in transit hubs and conveyances,” the judge wrote. Nor “does it require ‘social distancing [or] frequent handwashing’ despite finding these effective strategies for ending COVID-19 transmissions.”

The CDC didn’t even explain “why all masks—homemade and medical-grade—are sufficient.”

The CDC also relied on studies explaining that “universal masking” reduces COVID-19 transmissions, yet its rule doesn’t require universal masking. Instead, the rule contains a series of exceptions ranging from individuals who are “eating, drinking, or taking medication” to persons “experiencing difficulty breathing” or “feeling winded” or have a qualified disability under the Americans With Disabilities Act.

“The Mandate,” Mizelle wrote, “makes no effort to explain why its purposes—prevention of transmission and serious illness—allow for such exceptions.” Or, she added, “why a two-year-old [who is exempt from the mandate] is less likely to transmit COVID-19 than a sixty-two-year-old.”

Finally, some unfairly criticized Mizelle for voiding the CDC regulation nationwide, not just in Florida, and for everyone, not just the plaintiffs in the lawsuit. But as the judge explains, it wouldn’t be practical to do otherwise, since “a limited remedy would be no remedy at all.”

“How,” Mizelle asked, “is the ride-sharing driver, flight attendant, or bus driver to know someone is a Plaintiff to this lawsuit with permission to enter mask-free?”

“The identification problem is compounded further,” she said, for the “geographically dispersed” members of the organization that sued over the mask mandate for travelers.

Imagine the situation of an injunction limited to Florida, where Mizelle is a judge. You get on a plane in Miami, where you don’t have to wear a mask in the airport or in the plane. But then when the plane leaves Florida airspace, the pilot and the flight attendants have to tell everyone on board the flight to mask up. That would be an absurd and impractical result.

Again, Mizelle’s focused opinion is well reasoned and relies on prior court decisions, including those by the Supreme Court. It should be upheld on appeal.

And the Biden administration’s attempt to reimpose a mask mandate that is immensely unpopular among Americans who no longer have to wear a mask practically anywhere else is like trying to put a cork back in a bottle of champagne.

The administration is bound to lose, both legally and politically.