Free at Last!



(John Hinderaker)

As Scott noted earlier, Federal Judge Kathryn Kimball Mizelle has ruled that the CDC’s Mask Mandate for airline and other travel is illegal. Her decision is embedded below.

Judge Mizelle relied on three independent grounds in invalidating the mandate. First, she found that it exceeded the statutory authority that Congress has delegated to CDC under the 1944 Public Health Services Act, 42 U.S.C. § 246(a). The Biden administration argued that the mandate is justified by a reference in that section to “sanitation” as an action that CDC can carry out. Judge Mizelle engaged in a close analysis of the text of the relevant provisions and of the meaning of the word “sanitation” in context to conclude that the mask requirement is not “sanitation” within the meaning of the statute. Her reasoning is, I think, persuasive.

Her second ground for invalidating the mask mandate is that it is a rule that was adopted without the required public notice and comment period. The government claimed that the mask mandate was covered by the “good cause” exception that allows an agency to proceed without public input when a notice and comment period would be “impracticable, unnecessary, or contrary to the public interest.” The exception is narrowly construed and the burden is on the agency to show that it applies. In this case, the CDC simply recited the statutory standard in conclusory form without making any showing that notice and comment would, in fact, be “impracticable, unnecessary, or contrary to the public interest.” The court understandably found this to be inadequate.

The court accepted CDC’s claim that wearing masks would, in fact, retard the spread of covid. But that assumed fact does not constitute “good cause” for proceeding without notice and public comment, or else that requirement would be a dead letter for any action undertaken by CDC.

CDC argued further that a public comment period would have been useless because the agency’s mind was already made up. The court understandably rejected this theory, noting that the rule directly impinged on individual freedom; thus the public had a strong interest in being heard.

Finally, Judge Mizelle found that the Mask Mandate was arbitrary and capricious because the CDC articulated no rationale for the agency’s rejection, or failure to consider, alternative measures, or for its system of exceptions. Judge Mizelle said that she considers this the closest of the three grounds on which she found the Mask Mandate improper, an assessment that seems correct.

The court concluded that vacating the Mask Mandate rule was the appropriate remedy for the CDC’s violations of the Administrative Procedure Act. The court further ordered the Mandate remanded to CDC for further proceedings consistent with her order. I assume the government can appeal notwithstanding that remand, and will promptly move for a stay on enforcement of today’s order in the 11th Circuit Court of Appeals. Appellate practice is not my strong point, and I offer no opinion on whether a stay will be forthcoming, or whether you can assume that you can forgo a mask if you board an airplane later this week.

I do think that Judge Mizelle’s reasoning is sound, particularly with regard to the CDC acting without statutory authorization. The idea that the Mask Mandate constitutes “sanitation” within the meaning of the 1944 act (which in the same sentence confers on CDC powers of “inspection, fumigation, disinfection…pest extermination” and “destruction of animals”) strikes me as farfetched. I think her ruling ultimately will be upheld, although whether we will have to continue to wear masks on airplanes and other conveyances for a while is anyone’s guess.

Liberals are predictably up in arms about today’s decision, although I haven’t yet seen anyone criticize it intelligently. In fact, so far I haven’t seen any adverse comment from anyone who appears to have read Mizelle’s opinion. I guess it is no surprise that liberals are unconcerned about federal agencies issuing orders that infringe on the liberties of millions of Americans without either 1) having express statutory authority from Congress, or 2) following proper statutory procedures. The idea that government agencies should be able to simply issue orders and rules that liberals think represent good ideas, without constraint, is perhaps the essence of modern liberalism.

UPDATE: One of my daughters texts that United and Alaska Airlines have already dropped their mask requirements. Let’s hope that this becomes an irresistible tide.

MORE: “Apparently people at the airport are ripping their masks off and throwing them away.” Hallelujah!

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