More on the Transportation Mask Mandate Litigation

The US District Court ruling last Monday against the legality CDC Transportation Mask Mandat has changed air travel in America. Passenger and crew can now fly without masks for the first time since many months. I was one of them! While many (including myself!) were glad to have no masks, Judge Kathryn Kimball Mizelle has serious faults. This opinion was widely criticised by many commentators including myself, who is on the political left and opposes the mandate for masks or both. Andrew McCarthy, of the National ReviewDavid French, Sarah Isgur and Sarah Isgur The Dispatch.

My belief is that Judge Mizelle was wrong. It is also important to highlight that there were some weaknesses in the position of the administration. The US Court of Appeals Eleventh Circuit might still decide against the government. As long as they refrain from supporting Mizelle’s doubtful claims, a ruling against the government could be defensible.

The Eleventh Circuit isn’t responsible for grading lower court judges’ performance but rather to evaluate the legal argument against the mask mandate. They must decide in favor of plaintiffs who challenge the policy, even if the other arguments are rejected. Judge Mizelle’s analysis of other aspects in this case was flawed.

The Biden administration’s decision to not seek a stay on the ruling of the district court is one example that shows the government in an unfavorable light. The Justice Department is appealing the ruling of the district judge. The Justice Department has not requested the Eleventh Circuit issue a temporary stay so that the appellate panel may reach a final determination. Therefore, until the Eleventh Circuit has resolved the case (which could take many weeks or even months), the ruling of the district court will continue to be in effect.

One would expect that the government will seek a stay if they really believe the mask mandate to be a vital public health measure which saves many from dying or severe illness. It is possible that they don’t believe in the mask mandate policy.

The mask mandate policy is supported by experts who believe that the government’s decision to not seek a stay suggests it doesn’t care about the continuation of the mask mandate but only wants to protect the Centers for Disease Control (CDC), which has the ability to control future outbreaks.

Does the Biden administration really want and intend to fight for a higher court reversal of the ruling this week striking down its mask mandate on airplanes, trains and other public transportation — as its high-profile appeal of the case seemed to suggest?

Legal specialists raised another possibility: The administration may instead be buying time and thinking about trying to erase the ruling — a move that would allow it to protect the powers of the Centers for Disease Control and Prevention to respond to a future crisis — but without reviving a mask mandate.

According to several experts, this was the tell-tale sign that the Biden administration wasn’t seeking a stay on the ruling. It was the only way that would allow the Mask Requirement to be resurrected immediately.

Lawrence O. Gostin of Georgetown University, who was a Georgetown University professor in global health law and advised the White House regarding the case, stated that “essentially, it’s giving up on mask mandate.” “The goal of the administration is legal, and it is to make sure that C.D.C. Strong public health power to combat Covid, and future pandemics. And it appears much less important to them to quickly reinstate the mask mandate…”

Stephen I. Vladeck is a University of Texas at Austin professor of law who specialises in federal courts. He said that if the government wanted to appeal Judge Mizelle all the way, it would have to be done.

Vladeck claimed that it may be understandable for Biden to not seek a stop if he was trying to defend the C.D.C.The power was granted without any intention to restore the mask mandate to a higher court.

He pointed to an obscure legal doctrine under which if a case is on appeal when the dispute becomes moot for reasons unrelated to the litigation, an appeals court can remand it to the district court with instructions not only to dismiss the case but to vacate the district court’s ruling — meaning wipe it from the books.

He suggested that the government may give up on its mandate after it expires in May.

Vladeck and Gostin seem to be right that CDC public policy in health is becoming increasingly distrustable. As I have written in previous posts regarding the mask policy policy (see here, here) and highlighted its weaknesses. Then, I linked the issue to past instances when CDC policy seemed driven by political pressure rather than “following science”. More alarming than my skepticism is the apparent evidence that the Biden administration does not believe that the transportation mask mandate needs to be reinstated and is therefore not trying to do so.

This state of affairs at the minimum weakens the argument that the CDC should be given special judicial consideration for its allegedly apolitical knowledge on pandemic-related policies. Agency policy is heavily politicized in reality.

The administration and CDC can be defended on the ground that the policy and legal case for the mask mandate are strong. However, the conservative Eleventh Circuit appellate judges will likely uphold Judge Mizelle’s decision due to their biases against public health measures.

However, this overlooks the fact that Covid-era public healthcare measures have strong legal backing and have been supported by many conservative judges, even those sitting on the Supreme Court. Some notable examples are recent Supreme Court decisions that upheld the vaccination mandates of the Biden Administration for both health care workers as well as members of the armed force.

It is wrong to assume that any appellate decision against the transport mask mandate would be an outcome of bias or incompetence. This case has specific reasons.

Remember that Judge Mizelle ruled against the mask mandate based on three justifications. Section 264 (a), (2) that the CDC failed to follow the notice comment rule-making procedure, and (3) the policy was so irrational and “arbitrary and capricious” exceeded the authority of the agency under 42 U.S.C.To win the case, plaintiffs need to prevail on only one of these issues.

The third issue is where Judge Mizelle seems to be completely wrong. The policy on transportation masks is flawed but not ridiculous enough to call it “arbitrary or capricious”. Contrarily, I have already stated that there’s a plausible argument that the CDC has violated the APA. Even though the immediate nature of this situation allowed for the expediency of notifying and commenting on the issue when it was proposed, the CDC has no excuse to avoid normal procedures in the many months that have followed. Notice and comment requirements go beyond a simple technicality, it is important to emphasize. These requirements allow those affected by regulations to speak up and influence government officials to reduce their burdens.

This intermediate case concerns the CDC’s authority to act under Section 264 (a). This argument by the plaintiffs is not as strong as that on the APA but it is still as valid as that on the “arbitrary, capricious” standard.

Section 264(a), gives the CDC this authority:

With the approval of [Secretary of Health and Human Services]The Surgeon General is empowered to create and enforce regulations that he deems necessary in order to stop the spread, transmission or introduction of communicable disease from other countries to the United States or their possessions. To enforce such regulations, the surgeon general may order such inspections, fumigation or disinfection of articles or animals that are so infected as to pose a danger to humans, or other necessary measures. [a later statute gives this authority to the CDC rather than the Surgeon General]

The government claims that the transportation mandate qualifies for “sanitation” under the terms and conditions of the statute. My earlier post explains Judge Mizelle’s interpretation of “sanitation”, which is limited to “Positive action is to keep a space or object cleanThis doesn’t make any sense. The statute’s definition of “sanitation”, as I emphasized, should be sufficiently narrow to not make the powers in Section 264 (a) redundant. The CDC must not be given the power to stop any person from spreading disease – which was incorrectly ruled by the Supreme Court in the eviction Moratorium case.

My view is that the best definition of sanitation avoids both these pitfalls and allows the CDC the mandate to use a transport mask. There could be other plausible options, however. These alternatives are more likely than Judge Mizelle’s weak theory.

Andrew McCarthy and other commentators suggest the mask mandate could be authorized under Section 264 (a). This gives the CDC power to make and enforce regulations that he deems necessary to stop the spread, introduction, transmission or spread communicable disease from foreign countries to the United States, possessions or one state or possession to another State or possession. In this case, the government does not need to rely upon the phrase “sanitation” at the end of the second sentence.

If the first sentence were an independent grant or power, this would be in violation of the Supreme Court’s decision in the eviction Moratorium case. It was held that Section 264.a cannot be interpreted so as to allow CDC nearly unlimited authority over human activities. I as well as other opponents of the eviction ban stated repeatedly that almost all human interactions are at risk of spreading communicable diseases. In light of the Court’s decision in the eviction case, the Section 264 (a) second sentence should be interpreted as defining the type of regulations that the CDC may enact in order to attain the public health targets set forth in Section 264.

The case has other aspects that space restrictions prevent me from covering. Among them is the question of Judge Mizelle’s right to decide whether a “nationwide”, or “universal” remedy was appropriate, and not one only for plaintiffs. My tentative conclusion is that Judge Mizelle’s flawed opinion is not as strong as the case against transportation-mask mandate. I think that the government is still in a better legal position. A ruling in favor of the mandate is possible, provided that it does not make any extraneous errors by the district court.