A federal judge in Florida on Monday lifted the Biden administration’s mask mandate for public transit and travel hubs.
That abrupt judgment throws passenger demands into turmoil as Americans resume pre-pandemic travel levels and while cases of the Omicron subvariant BA.2 have started ticking higher.
It’s unclear if or when the Justice Department will appeal the judge’s order and seek a stay to reinstate the mandate pending further hearing. According to the latest reportsAdministrators confirmed this the mandate no longer exists, although the Centers for Disease Control and Prevention still recommends the use of masks on public transport. The administration should examine the next steps.
Monday’s ruling came from federal district judge Kathryn Kimball Mizelle, who slashed the mandate through a case filed in July 2021 by conservative group Health Freedom Defense Fund and two Florida residents. Local residents claimed that the federal mask requirement increased their anxiety and panic attacks.
Mizelle ruled that the CDC — which extended the mandate through May 3 — exceeded its congressional authority in passing the law and that the agency also violated administrative procedures in implementing it. As such, she declared the mandate illegal and cleaned it up.
Mizelle’s argument for the ruling is bound to spark legal debate, as similar cases have failed to overthrow the federal mandate many times — including Cases that reached the level of the Supreme Court. And Mizelle also has a controversial history. Despite this, she was appointed to her position by former President Donald Trump in 2020 The American Bar Association deemed her “unqualified” to be a district court judge. According to the ABA, candidates for a Bundesbank should have at least 12 years of legal practice experience before accepting the position. But at the time of her appointment, Mizelle had only been an attorney for eight years, and she had not tried a single case as principal or co-counsel. Nevertheless, she was confirmed as a district court judge along the party line.
In her 59-page ruling, which single-handedly overturned the federal mandate, Mizelle’s argument drew in part on a 1940s definition of the word “sanitation.”
In issuing the mask mandate, the CDC relied on the Public Health Services Act (PHSA) of 1944. Mizelle zoomed in on a specific phrase that reads, “For purposes of implementing and enforcing such regulations, the [CDC] such inspection, fumigation, disinfection, hygieneDestruction of vermin, destruction of animals or articles so infected or contaminated as to be sources of infection dangerous to humans, and other measuresas in [the Secretary of Health and Human Services’] Judgment may be necessary.” [emphasis added]
The CDC has directly interpreted “hygiene” and “other measures” to include masking, since masks promote “hygiene.” as currently defined: “Promotion of hygiene and prevention of diseases by maintaining sanitary conditions.” However, Mizelle searched for a definition of “sanitation” from about 1944, when the PHSA was designed. She referred to the 1946 edition Funk & Wagnall’s New Standard Dictionary, which defined hygiene as “the removal or neutralization of elements harmful to health”. She argued dubiously that the PHSA’s use of “sanitary facilities” should mean “active Cleaning.”
The context of the PHSA, she wrote, “suggests that ‘hygiene’ and ‘other measures’ refer to measures that clean, not those that keep clean. Wearing a mask doesn’t cleanse anything,” she argued. “It only catches virus droplets. But it doesn’t ‘disinfect’ the person wearing the mask, nor does it ‘disinfect’ the mode of transport.”
Despite the apparent counter-argument that a mask purifies exhaled air by trapping and thus removing harmful virus droplets, it concludes that the mask requirement falls “outside” the scope of the PHSA.
In the second part of her argument, Mizelle focused — at length — on the fact that the CDC skipped a 30-day public comment period before instituting the travel mask mandate. Under the Administrative Procedures Act, the CDC is allowed to skip this 30-day period if it believes it has “reasonable cause,” which applies in “emergency situations” where delay “could result in serious harm.”
For its “good cause,” the CDC cited a global pandemic that caused a public health emergency that has killed nearly a million Americans to date.
While Mizelle seemed to agree with the CDC that the public health emergency is good enough reason to skip the deadline, she accused the agency of being too concise in its written justification. Mizelle noted that when the Centers for Medicare and Medicaid Services (CMS) skipped the comment period before mandating COVID-19 vaccines for employees at CMS-funded facilities, the agency wrote a four-page statement of its “good cause” — complete with 40 footnotes, Mizelle pointed out.
The CDC, on the other hand, justified its abridged timeline with a single sentence, calling it a “healthy statement” that the pandemic had a good reason. But Mizelle apparently wanted receipts, although she didn’t necessarily think the agency was wrong.
“The court accepts the CDC’s landmark decision that requiring masks will limit transmission of COVID-19 and thus reduce the serious illness and deaths that COVID-19 causes,” she wrote. “But the finding alone is not sufficient to establish an important reason.” Elsewhere, she lamented that “the CDC failed to articulate this reasoning” and “identify specific reasons.”
“In short, whether the CDC made a good decision or an accurate decision, they had to explain why they acted the way they did,” she wrote.
Overall, Mizelle concluded that “It is undeniable that the public has a strong interest in controlling the spread of COVID-19 … But the mandate went beyond the CDC’s statutory authority, improperly invoking the exception.” with good reason to notice and comment on the rulemaking, and failed to adequately explain its decisions.” As such, she labeled the mask requirement unlawful and gave it the axe.
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