Infections with COVID-19 are on the rise again in the United States. according toThe Centers for Disease Control and Prevention. The U.S. has seen a decline in COVID deaths. reached the 1 million mark, widely considered an undercount.
The steady rise in COVID cases underlines the perilous wrongheadedness exhibited by Kathryn Kimball Mizelle (the federal district court judge in Florida) who recently ruled in her favor. struck down the national transportation mask mandateApril 18.
“The majority opinion is a result searching in vain for a plausible reason,” California Supreme Court Justice Allen Broussard wrote in 1988, dissenting from a poorly reasoned majority decision in People v. Guerrero,This expanded the list of factors a judge could consider when imposing sentencing enhancements. Broussard’s statement also aptly describes the recent decision by Mizelle, who likewise reasoned backward by amassing reasons for her pre-ordained result.
Joe Biden requested the CDC to impose a travel mandate for the COVID virus within 48 hours of taking office. The CDC agreed to this. imposed a mandateon February 3, 2021. For 14 months, all people who traveled by plane, train, or road vehicle, as well as through transport hubs, were required to wear masks. The mandate was extended by the CDC several times. give public health experts timeTo determine if it should continue.
As of April 17, the day before Mizelle’s decision, new COVID infections were averaging over 37,000 cases daily, up 39 percent from two weeks prior, according to a New York Times database.
Nevertheless, Mizelle’s ruling allows individual airlines and transit agencies to decide for themselves whether to require masks. By the end of the day on April 18, the country’s largest airlines and the Amtrak rail system had shelved their mask mandates. Midflight, some pilots announced that people could take off their masks. much to the shockMany immunocompromised individuals and those who travel with young children who have not been vaccinated are at risk.
Two individuals and the anti-COVID regulation group Health Freedom Defense Fund filed the lawsuit against the Biden administration in July 2021. Two individuals claimed that they suffered anxiety and panic attacks due to wearing masks.
In voiding the mandate, Mizelle set forth a bizarre interpretation of the authority Congress granted the CDC to promulgate rules to prevent the spread of communicable diseases, writing that “the Mask Mandate exceeds the CDC’s statutory authority.” In her 59-page rulingMizelle argued that the CDC exceeded its authority under the Public Health Services Act of 44 when it imposed the transportation-mask mandate.
Trump appointee and ex-clerk to Clarence Thomas, whom she called “the greatest living American”), Mizelle was rated not qualifiedBy the American Bar Association, before she was confirmed in a November 2020 vote by Republican senators party-line vote.
It is evident that she lacks qualification, as evidenced by her misinterpretation the Public Health Services Act. The act empowers the CDC “to make and enforce such regulations as in [its]It is essential to exercise judgment in order to prevent the spread, transmission, and introduction of communicable diseases from other countries into the States. . . or from one State . . into any other. . . State.” The statute lists examples of this authority, stating that the CDC “may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected . . . Other measures, such a [its] judgment may be necessary.”
Requiring masks is a “sanitation” measure, the Biden administration argued, because it keeps the air cleaner. But Mizelle consulted dictionaries and word usage in the 1940s to conclude that sanitation requires active cleaning and masks “clean nothing.”
Although Mizelle quoted the CDC’s finding that masks are “one of the most effective strategies available for reducing COVID-19 transmission,” she substituted her own construction of the act for the CDC’s. Mizelle refused not to rely on the CDC as required under the Chevron deference doctrine, which requires a court to accept an agency’s interpretation of a statute when the statute is ambiguous and the agency’s interpretation is reasonable.
Instead, Mizelle relied on the “major questions” doctrine, which holds that agencies such as the CDC cannot decide questions of “vast economic or political significance” unless Congress specifically authorizes it. Right-wing judges often use this flawed doctrine to limit the power of the government to protect peoples’ rights.
Mizelle concluded that Mizelle’s mask mandate violated the Administrative Procedures Act. This Act requires that public notice be given and the public has the opportunity to comment on the rule before it is promulgated by an agency. She rejected the “good cause” exception to the notice and comment requirement in spite of the COVID emergency. Mizelle dismissed as insufficient the CDC’s claim that the mask mandate is in “the public interest,” which is one of the factors included in the APA’s definition of “good cause.” She wrote that “[t]he only reason” cited by the CDC for the mask mandate is “the public health emergency caused by COVID-19.”
Astoundingly, Mizelle noted, “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,” but she then concluded that this doesn’t amount to “good cause.”
Stressing that the mandate “would constrain [the public’s] choices and actions,” Mizelle chose the freedom of travelers like plaintiff Ana Daza who have “anxiety aggravated by wearing a mask” over the COVID public health emergency.
The CDC will be open on April 20th issued a statement asking the DOJ to appeal Mizelle’s ruling. “It is CDC’s continuing assessment that at this time an order requiring masking in the indoor transportation corridor remains necessary for the public health,” the agency wrote. “CDC continues to recommend that people wear masks in all indoor public transportation settings…. Wearing a mask in public transport settings indoors is a good idea. well-fitting mask or respirator over their nose and mouth in indoor travel or public transportation settings, they protect themselves, and those around them, including those who are immunocompromised or not yet vaccine-eligible, and help keep travel and public transportation safer for everyone.”
Accordingly, the DOJ was established on April 20 filed a notice of appeal of Mizelle’s ruling. Inexplicably, the DOJ did not request a temporary pause on Mizelle’s sweeping decision pending appeal.
The appeal will be heard by the conservative U.S. Court of Appeals, 11th Circuit. This could take several months. The Supreme Court could ultimately decide the case. The outcome could have a long-lasting impact: A ruling by a federal district court is not binding precedent. However, a ruling by a court or appeals and, of course a Supreme Court ruling would.
“This sets up a clash between public health and a conservative judiciary, and what’s riding on it is the future ability of our nation’s public health agencies to protect the American public,” Lawrence O. Gostin, a public health law expert at Georgetown University, told the New York Times. “The risk is that you will get a conservative 11th Circuit ruling that will so curtail C.D.C.’s powers to fight Covid and future pandemics that it will make all Americans less safe and secure.”
Gostin also said, “If CDC can’t impose an unintrusive requirement to wear a mask to prevent a virus from going state to state, then it literally has no power to do anything.”
The CDC expired the mask mandate on May 3, which was the date the most recent extension was granted. issued a new recommendation that all individuals 2 years and older wear masks “in indoor areas of public transportation (such as airplanes, trains, etc.) masks in transportation hubs (such at airports, stations, etc.).” The CDC recommended that people wear masks “in crowded or poorly ventilated locations, such as airport jetways.”
However, a federal right-wing judge issued a nationwide order against the transportation mask mandate. Therefore, the CDC could only recommend wearing a mask to protect Americans against COVID and not requiring it.
Hopefully the 11th Circuit will reverse Mizelle’s decision. But if the appellate court affirms her ruling and the case is appealed to the Supreme Court, the right-wing majority may well uphold Mizelle’s decision and dangerously constrain the power of the CDC to safeguard our health. We travel at our own risk.