Maybe it’s time to end the mask mandate for airplanes, trains and public transport. Maybe it’s prudent to keep it in place. I’m not sure, but I do know this: That decision should be made by federal policymakers — not by a single district court judge who was ideologically predisposed to strike down the mask rule and who then contorted the law to achieve that goal.
Another day, another activist Trump judge legislating from the bench.
This latest is Kathryn Kimball Mizelle of Tampa. She was one of the last Trump judges to be confirmed, in an unusual vote by the lame-duck Senate after President Donald Trump lost reelection, and, at 33, his youngest judicial nominee. A member of the Federalist Society and former clerk to Justice Clarence Thomas, Mizelle was deemed “not qualified” by the American Bar Association because of “the short time she has actually practiced law and her lack of meaningful trial experience.”
Now she’s on the bench for life. On Monday, she ruled that the Biden administration lacked the authority to impose the mask mandate.
No doubt, the Biden administration has stretched the law to deal with the pandemic. It turned to the federal workplace safety law to impose a vaccine-or-testing mandate for many employers. I thought this was justified under the extraordinary circumstances of the pandemic, but the Supreme Court, splitting 6-to-3, disagreed.
Another, even greater leap concerned the use of the same public safety law at issue in the mask mandate case to extend an eviction moratorium after one enacted by Congress expired. Granting the Centers for Disease Control and Prevention the power to impose an eviction moratorium, the court said, again by a 6-to-3 vote, would be an “unprecedented” and “breathtaking” expansion of authority.
“Could the CDC, for example, mandate free grocery delivery to the homes of the sick or vulnerable?” the majority asked. “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?”
But the mask mandate — a standard public health measure — presents an easier question. The federal law gives the CDC power “to make and enforce such regulations as in [its] judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases.” The next sentence of the law says that “for purposes of carrying out and enforcing such regulations,” the agency “may provide for such inspection, fumigation, disinfection, sanitation … and other measures as in [its] judgment may be necessary.”
A mask requirement falls comfortably within the language of a rule necessary to prevent the spread of communicable disease. Indeed, even if the second sentence, about inspection and fumigation, is understood to limit the reach of the first, masking could easily be justified as a “sanitation” or another “necessary” measure.
“Much like other ‘sanitation’ measures, such as wearing gloves or a gown … wearing a mask is intended to reduce the transmission of viral particles,” the Biden administration argued in the case. As conservative law professor Ilya Somin of George Mason University wrote after the ruling, “It seems to me that mandatory masking to prevent the spread of a respiratory virus at least plausibly fits within the meaning of ‘sanitation.’”
Not to Mizelle. She appeared determined to get rid of the mask mandate, and so she did — by torturing the words of the statute. “Sanitation,” she said, could have two meanings: one active (to take steps to cleanse something) and one passive (“to preserve the cleanliness of something”). Only the first meaning, Mizelle insisted, makes sense in the context of the statute, and ordering passengers to wear a mask fell outside her understanding of “sanitation.”
Seriously? As Somin points out in a rather revolting hypothetical, this would prohibit the CDC from issuing a rule, if such were necessary, against defecating on the floor of a train or airplane. “That would not qualify as ‘sanitation’ under Judge Mizelle’s approach because it does not clean anything, but merely ‘keep[s] something clean’ (in this case, the floor).”
But Mizelle was just getting started. When a statute is ambiguous and an agency’s interpretation is reasonable, judges are supposed to defer to the agency. Here, though she had just spent more than a dozen pages parsing the meaning of “sanitation,” Mizelle declared the law “not ambiguous” and the CDC’s interpretation “not reasonable.”
In any event, she said, such deference wouldn’t apply in the case of a “major question” such as the mask mandate, where Congress would have spoken more clearly if it wanted the agency to go that far. If it were allowed to do so without congressional authorization, she wondered, what could be next — mandatory daily multivitamins?
And not only that, she added; the administration also erred by not waiting the ordinary 30 days to receive comments on the proposal. Get this reasoning: “The Court accepts the CDC’s policy determination that requiring masks will limit COVID-19 transmission and will thus decrease the serious illnesses and death that COVID-19 occasions,” Mizelle wrote. “But that finding by itself is not sufficient to establish good cause.” So the rule is invalid because, in the midst of the deadly delta variant outbreak, CDC didn’t wait a month for public comment?
This is advocacy masquerading as lawgiving. Somin is more sympathetic to Mizelle than I am, but consider his assessment: “At times, Judge Mizelle’s opinion reads as if she is taking a kitchen sink approach to defending her ruling — throwing out every argument she can, good, bad, or indifferent. This strategy makes sense in high school debate, and perhaps for some legal briefs. But it isn’t a good idea for judges ruling on a case, especially an important one.”
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