Even If the CDC’s Mask Mandate Made Sense, That Would Not Make It Legal

You may not know this, but the Federal Judge who lifted the federal mask requirement for passengers in public transport and airline on Monday was only 35. The New York TimesI believed that details were important. so did SlateMark Joseph Stern, a lawyer.

It is not surprising that U.S. district Judge Kathryn Kimball Mizelle was criticized for her 59-page decision. Instead of focusing on her age, it reflected the confusion created by those who believe that every COVID-19 control measure as reasonable must also be legal. Conflating these two questions amounts to rejecting law.

Mizelle responded to a suit challenging an order that the Centers for Disease Control and Prevention published in Federal RegisterOn February 3, 2021. Her conclusion was that this rule applied to taxis as well ride-sharing and airplanes as well public transportation systems and exceeded the authority granted by the CDC.

Under a 1944 Public Health Service Act provision, the CDC authorized regulations to stop the spread of communicable disease between states. The CDC’s mask mandate was issued. According to the law, “inspection, fumigation of disinfection and sanitation,” pest extermination is allowed, as well “destruction” for infected “animals” or “articles” that are contaminated.

The CDC cited this same provision in support of its nationwide eviction moratorium. It argued that “other measures” allows any type of disease control measure that it considers necessary. The Supreme Court refuted this “breathtaking” power grab. It stated that the list of examples “informs” the grant of authority, illustrating what kinds of measures could be needed.

Mizelle said that in light of this principle, the question is now whether the CDC’s mask directive qualifies for “sanitation”, as claimed by the agency, or another similar measure. Five reasons were given by Mizelle to reject that reading.

Mizelle said that the CDC had also “improperly invoked” the exception for “good cause” to the APA’s requirement for “notice, comment”, which is a prerequisite for new rules. She also stated that the mask mandate was “arbitrary, capricious”, as the CDC had “failed adequately to explain its reasoning.”

Mizelle supported all of these conclusions with detailed discussion and compelling reasons. Stern explained why she was wrong. complainedA single 35-year-old, non-elected and life-long judge has just repealed the country’s air travel mask mandate.

Stern felt that it was undemocratic. He asked“Who should determine whether passengers on air must wear masks? A federal agency that is staffed by experts who are accountable to President Trump, and accountable to the citizens?” A Tampa 35-year old Trump judge?

In this instance, the issue was not whether or not it made sense for travelers to wear masks. It was who gets to decide that and under what legal authority—a question that squarely resides with the judicial branch, not with the “experts” at an executive agency.

They are not elected and enjoy life tenure which helps them to evade political pressures while answering such questions. It is an advantage, and not a problem, since presidents in our system of government cannot do anything they wish, regardless of the will of the majority. They must adhere to the law.

Mizelle is not younger than she was and Donald Trump did nothing to affect her ability to perform her duties. Stern refers to her as a Trump judge. He is echoing Trump who dismissed an opinion he didn’t like as “an Obama judge”.

For the upholding of the rule, judges must be independent. When Partisans criticize both, they claim judges should not interfere with policies made by democratically elected officials. They are required to do this when it is necessary.

© Copyright 2022 by Creators Syndicate Inc.