New COVID-19 infections are once again on the rise across the United States, according to the Centers for Disease Control and Prevention (CDC). COVID deaths in the U.S. have now reached the 1 million mark, a figure widely regarded as an undercount.
The steady increase in COVID cases underscores the perilous wrongheadedness of the recent decision by Kathryn Kimball Mizelle, the federal district court judge in Florida who struck down the national transportation mask mandate on April 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, that broadened the factors a judge could consider when imposing a sentencing enhancement. Broussard’s statement also aptly describes the recent decision by Mizelle, who likewise reasoned backward by amassing reasons for her pre-ordained result.
Shortly after taking office, Joe Biden asked the CDC to impose a travel mask mandate to check the spread of the COVID virus. The CDC complied and imposed a mandate on February 3, 2021. For 14 months, people traveling by aircraft, train, road vehicles, and other forms of transportation and through transport hubs were required to wear masks. The CDC extended the mandate several times to give public health experts time to determine whether it should be continued.
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. Some pilots announced midflight that people could remove their masks, much to the shock of many immunocompromised people and those traveling with unvaccinated young children.
The lawsuit in which Mizelle ruled was filed in July 2021 against the Biden administration by two individuals and the anti-COVID regulation organization Health Freedom Defense Fund. The two individuals claimed they suffered from anxiety and panic attacks caused by 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 ruling, Mizelle held that the CDC overreached the bounds of its authority under the Public Health Services Act of 1944 when it imposed the transportation mask mandate.
A Trump appointee and former clerk to Clarence Thomas (whom she called “the greatest living American”), Mizelle was rated not qualified by the American Bar Association before she was confirmed by Republican senators in a November 2020 party-line vote.
Her lack of qualification is clear, judging by her misinterpretation of the Public Health Services Act. The act empowers the CDC “to make and enforce such regulations as in [its] judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign 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 . . . and other measures, as in [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 to defer to the CDC as required by 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 the mask mandate violated the Administrative Procedures Act (APA) which requires granting the public advance notice and the opportunity to comment before an agency promulgates a rule. 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.
On April 20, the CDC 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…. When people wear a 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, on April 20, the DOJ 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 conservative U.S. Court of Appeals for the 11th Circuit will hear the appeal, which could take several months. Ultimately, the case could end up at the Supreme Court. The outcome could have long-lasting significance: A federal district court ruling does not constitute binding precedent, but a court of appeals ruling 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.”
On May 3, the day the most recent extension of the mask mandate expired, the CDC issued a new recommendation that all individuals 2 years and older wear masks “in indoor areas of public transportation (such as airplanes, trains, etc.) and transportation hubs (such as airports, stations, etc.).” The CDC recommended that people wear masks “in crowded or poorly ventilated locations, such as airport jetways.”
But because one right-wing federal judge issued a nationwide injunction against the transportation mask mandate, the CDC could only recommend wearing masks to protect the American people against COVID, as opposed to 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. Meanwhile, we travel at our own risk.