Kathryn Kimball Mizelle, a US federal judge, ruled today that the Centers for Disease Control’s (CDC) mask mandate for planes and airports is unlawful. The federal government announced, at least temporarily, that the mask mandate was no longer in place and many airlines have removed it.
For reasons that I have summarized below, I strongly oppose the mask mandate. However, I am skeptical about today’s legal reasoning. It’s possible that the Biden Administration will appeal the decision.
According to The CDC, the policy of the mask mandate is authorized under 42 USC Section 264 (a). This law was used by The CDC to justify its nationwide eviction moratorium that was overturned by the Supreme Court on August. I have argued against the legality the eviction ban from its inception, but it appears that transportation mask mandate is based on stronger grounds.
The following powers are granted to the CDC by Section 264(a).
The approval of the Surgeon General. [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]
My previous post about the mask mandate topic explained that the main difference between the current and former eviction moratorium cases is that the mandate does not have to be based on an extreme interpretation of the “other measures” catch-all provision. Instead, it can be justified as “sanitation”. I believe that obligatory masking to avoid the spread a respiratory disease fits at the very least within the definition of “sanitation.”
Judge Mizelle acknowledges this as the main issue and uses a more narrow definition of sanitation to do so.
[S]Anittation as used The [Public Health Services Act] Could You can find it here Referred To Active Measures Cleanse Something To preserve The cleanliness Some thing. However This is the second definition. Would Appear To Cover The Mask Mandate, The Former Definition Would preclude it. Accordingly, The Cour You must determine This You can find the Two Sensibilities The The best reading You can find the statute….
It Context Of § 264(a) It indicates That “sanitation” “other measures” Refer To Measures That Clean something, It is not ones Keep it up Something clean. You can wear Mask Cleanse nothing. To Most it traps virus droplets. But It neither The person is “sanitized” Wear The mask Nor “sanitizes”. The conveyance….
Start With The Instant context. Sanitation Travels Company With “inspection,
fumigation, disinfection, . . . pest extermination, [and] destruction.” § 264(a). These terms.Involve Measures Targeted At “Identifying,” isolating, Dispose The Maladies itself.” Ala. Ass’n of Realtors, 141 S. Ct. at 2488 Und However “sanitation” Is “susceptible” Multiply wide-ranging meanings,” It is “given More precise Content The Nearby Words With This It is associated.” United States v. Williams, 553 U.S. 285, 294 (2008). Was ist das? these words share in common They involve identification Eliminating and identifying known Sources Disease. Look! Tiger Lily, LLC v. U.S. Dep’t Hous. & Urb. Dev. (TigerLily I, 992 F.3d 518, 523 (6th Cir. 2021) (summarizing Section (a) as “government Intrusions Property To sanitize Dispose List of those infected matter”). They Do It is not Keep it up The Status Of being “disinfected” Or “fumigated.” Instead, They All Change This article is available in English object’s status….Usual Usage At the Time agrees. One Method To assess The Ordinary Meaning Of
A term Is to Search Database Naturally It is happening language. Search Retoures The desired Wort Its context With You will need a good sample Size and search results allow Refer to inflections How A word This was used. These are the best Method Is known As corpus linguistics… It Cour Click here You searched The Corpus Historical American English (COHAY) Find uses Of “sanitation” There are between 1930 1944 [when Section 264 was enacted]. The The 507 results, The Most Regular Usage Sanitation The primary meaning of sanitation is to do something positive and make things or places clean. Most common uses of sanitation included garbage disposal, sewerage and plumbing or the direct cleaning of an item that was dirty. In contrast, by far the least common usage—hovering around 5% of the data set—was of sanitation as a measure to maintain a status of cleanliness,or as a barrier to keep something clean.
It is a thorough analysis. But I remain skeptical. I find the broader definitions of “sanitation”, which are more consistent with everyday usage, more intuitive than the more narrow. The narrow definition could lead to counterintuitive outcomes, among other things. A regulation by the CDC that prohibits defecation in a plane or train would, for example, not count as “sanitation” per Judge Mizelle. This is because the regulation does not “clean anything,” but only “implement.”Keep it up[s] Something Clean” in this instance, it would be the floor. But, in my opinion, the majority of people today would agree that an interdiction on humans urinating on the ground is a “sanitation policy”. As Judge Mizelle points out, courts must generally follow the meanings of federal statutes unless strong evidence is presented to the contrary.
The best argument Judge Mizelle has against the expansive definition of “sanitation,” I believe, is this:
Remember that Congress listed as “fumigation”. “disinfection” “destruction” Alongside “sanitation.” § 264(a). If the Government It is Correct That Hygiene Allow Please see the following: The CDC’s Mask Mandate because it promotes Hygiene Prevent The spread Of disease, Then the Continuation Words § 264(a), These are some examples As Disinfection Fumigation These are redundant. Each act necessary To prevent Maladies spread Would Please be Possible Unter sanitation. It would Thus Please be Unpossible To Give In effect “to Everywhere clause Wort Of [the] statute,” Moskal v. United States, 498 U.S. 103, 109-10 (1990), because These are Separate Words Would It’s all here Subsumed Unter The umbrella Conventional ‘sanitation’ Take measures[s]”…. These are examples A Reading renders Most Of The Second Sentence Just surplusage, an untenable When you get the result Other Interpretations They are readily available. Look! United States v. Butler, 297 U.S. 1, 65 (1936) (“These Words Cannot Please be meaningless, And Other They Would It is not You can find it here be used.”). Instead, Hygiene More Probability refers—consistent With It is the most Common Usage At the time—to Acts That Remove We refuse or debris From This article is available in English Region Or object, An reading That Preserves independent Meaning For the Other Conditions § 264(a).
Redundancy is an old rule of interpretation. It seems like “sanitation”, which has a broad definition, might render “disinfection, destruction” and “fumigation redundant. But I’m not sure that a plausible definition of sanitation broad enough to include the mask order must necessarily be so broad as to render the other terms superfluous. The term “sanitation” can be understood to mean ordinary cleaning procedures, which include those that remove refuse or debris and those that prevent its arising (as in the prohibition against defecation). Term like “fumigation”, or “disinfection” could refer to chemical agents as well as other sophisticated methods to prevent (in case of “fumigation”), or eradicate (in case of disinfection) infection. As a result, “destruction”, although it may be used in a wide range of terms, doesn’t mean all dangerous objects can be destroyed.
The opinion raises many other questions. Judge Mizelle argues, for example that the CDC failed to follow the “notice-and-comment” rule making procedure. This is a violation of the Administrative Procedures Act. This argument seems plausible to me. It is also strange that such an expansive and consequential rule could be in place for so many months, without having gone through the normal rules-making process. This is something that I will let the APA experts address. Weaker, but still persuasive, she claimed that the mask mandate is a “conditional freedom” for would-be travellers, and not a “sanitation” measure.
Sometimes Judge Mizelle can seem to be taking an ingenious kitchen sink approach when defending her decision – throwing out all arguments she has, whether they are good or bad. It is a good strategy for high school debate and maybe some brief legal discussions. This strategy is not recommended for judges deciding on cases, particularly important ones.
The judge makes some excellent points. I believe she is wrong on the bottom line. However, the ruling is more convincing than some critics believe. lawprof TwitterYou are willing to accept it, as well as others.
I think the ruling may be influenced by the CDC’s decline in credibility, as a result of the agency’s excessive overreach in Title 42 “public safety” cases, Title 42 “public security” expulsions and Title 42 mask expulsions. Also, the CDC’s incoherent position on masks and its inconsistency with its recommendations for other settings, could also have impacted the decision.
These factors should, in theory, not have an impact on courts. However, courts may hesitate to rely on agencies’ alleged expertise if they have a questionable track record.
The Biden Administration is yet to appeal this ruling. It’s possible that the court of appels will overturn the ruling by the trial court. The transportation mask mandate may remain in place for some time. At least I’m going to try and enjoy it as long as it lasts.