“At first glance,” Judge Kathryn Kimball Mizelle wrote in his order, Monday, throwing out the federal mask mandate for people using public transportation — planes, trains, Ubers — it might seem that the mandate was instead “closely tied to the powers granted” to federal health authorities by law. Indeed, it blushingly seems to be intertwined, which is why the ruling by Mizelle, a federal district court judge based in Tampa, Florida, is so alarming. The Public Health Services Act of 1944 gives federal health authorities broad powers “to prevent the introduction, transmission, or spread of communicable disease” by means of interstate modes of transportation, and to do so by establishing rules relating to “the inspection, fumigation, disinfection, sanitation, extermination of pests, destruction of animals or objects infected or contaminated to the point of being dangerous sources of infection for human beings as well as “other measures” which, in their “judgment, may be necessary”. Legally speaking, requiring a mask on an airplane or on Amtrak in the midst of a pandemic seems like a fairly modest exercise of that authority.
Mizelle’s decision, which has inspired social media videos of people happily unmasking on airplanes, was sudden and surprisingly broad. She did not rely on a narrow ground such as the fact that at this stage of the covid-19 crisis, hospitalization rates are low and vaccines are widely available, and so a transport mask mandate may no longer be warranted. Instead, she found that the Centers for Disease Control and Prevention had never had the authority to issue such a warrant and therefore would not be able to do so in the future, regardless of the form of the warrant. a future pandemic. (The Biden administration is appealing the ruling.) And Mizelle did so not by invoking some grand constitutional principle but by deciding, to put it bluntly, that the words didn’t have to mean what they seemed to mean. . That she pretends to do so out of respect for the language of the law, in the manner of a textualist, is nothing but cheap irony.
Mizelle, a former clerk for Supreme Court Justice Clarence Thomas, was rated “unqualified” by the American Bar Association just before being confirmed as a federal district court judge in November 2020. The ABA Rating # was based on nothing untoward. she had done, or any ideology she espoused, but her lack of experience. (She was then a 33-year-old partner in a law firm.) But her youth may have been seen, by Donald Trump and other Republicans, as a plus: Federal judgeships are appointed to life, which means Mizelle could be on the bench for several decades. The plaintiff in the mask-warrant case is an organization called the Health Freedom Defense Fund, an advocacy group founded by Leslie Manookian, which is described on the group’s website. Website as “a former successful Wall Street business executive”. The group was joined by two individual complainants who said the warrant prevented them from travelling, in one case because the person believed a mask would cause them to have a panic attack. (The mandate exempted people with various medical conditions, if not anxiety.) The combination at play here — an interest group, a Trump-appointed judge, and a politicized case — is unlikely to seem like an outlier in the years to come. .
The argument focused on the word “sanitation” in the law. Mizelle, noting the year of the law, had consulted various contemporary dictionaries. She found some definitions, including, in a 1946 Funk & Wagnalls (“design and application of measures to preserve and promote public health”) and in the Simplified Medical Dictionary for Lawyers, 1951 edition (“the use of sanitary measures to preserve health”). Mizelle notes that “examples of this sense of sanitation, i.e. keeping something clean, “include air filters or barriers, masks, gowns or other protective gear. “.
She acknowledges that this definition “would seem to cover the mandate of the mask”, but this meaning does not seem right to her. For reasons that are difficult to explain, she prefers definitions that better describe the act of taking out trash, such as “acts that remove trash or debris from an area or object.” She claims that meaning of sanitization would “exclude” warrant, which, despite all the flip-flop dictionaries, seems to be the real reason she prefers it. “Wearing a mask doesn’t clean anything,” she wrote. “At most, it traps virus droplets.” None of this is entirely logical or even textually coherent; for example, a definition that it places in the category excluding masks – “the removal or neutralization of elements injurious to health” – would seem to apply to masks. (She also throws out a third definition, “the practical application of sanitary science,” on the grounds that it could also apply to the other terms of the law, such as disinfection and fumigation. That’s a little confusing. , because the relevance of the definition is what it seems to say disqualifies it – as if the definition were somehow also appropriate to be correct.) She doesn’t even admit that the CDC’s reading of the law was “reasonable.”
The law, again, also refers to “other measures”. But, in Mizelle’s reading, there is a meta-requirement, which does not appear anywhere in the text, that the specific rule that provided the basis for the mask mandate can only apply to the ” property”, and not to “freedom”. It’s not really clear what she means by either term. Its raison d’être, such as it is, is that other parts of the law explain when health authorities can detain a person entering the country, that they put in their “freedom” box, and that the requirement to wear a mask is in the same category as being subject to “detention” or “quarantine”—and so the part of the law the CDC cited for the mask mandate cannot apply. More than that, she paints the mandate as a measure laced with violence: people who don’t wear a mask “are forcibly removed from their plane seats, denied boarding at the bus steps and turned away at the gates. from the train station, all on suspecting that they are going to spread a disease. One of the many corrosive aspects of Mizelle’s decision is the implication that raising the possibility that someone is carrying a virus is akin to a charge of guilt, making it the subject of ‘suspicion’ . Reading the order is like watching someone do a cryptic crossword puzzle: trying out unlikely or double-meanings and jumbled terms in a dogged effort to fill in a series of empty, ideologically arranged boxes. (Ruth Marcus, of Washington To post, referred to the order of Mizelle as “advocacy disguised as a legislator”.)
Mizelle also found that the CDC had, in issuing the warrant, failed to comply with what is known as the Administrative Procedure Act, by not giving proper notice or explaining the reasoning behind the rules – for example, explaining how the mandate could be effective when infants and toddlers or people who eat and drink are exempt. This part of Mizelle’s order is more grounded in reality, and, if her order had canceled the warrant solely because of these procedural issues, it would have been far less troubling. There would still have been questions about a single federal judge overturning the nationwide rule — a frequent point of contention in recent years, by both Democrats and Republicans — but the CDC could, now and in the future, solve his APA problem by better communicating his thinking. The power of the mask-mandate itself would not have been in question. The warrant was due to expire on May 3, anyway, and it could have been changed or canceled even without Mizelle’s intervention. But his decision as a whole goes well beyond both the APA and the bounds of common sense.
The order’s scope and legal folly are both reasons the Biden administration is appealing it, but also why the Justice Department has in recent days seemed to be proceeding with caution. She did not seek a stay of the order pending an appeal, for example, which, like the Time noted in an article on legal game theory involved, Attorney General Merrick Garland called it a “tactical strategy.” The concern appears to be that a false litigation move that leads to another judge hastily affirming Mizelle could solidify the order. After all, what awaits at the end of a possible chain of appeals is a Supreme Court with six conservative justices, three of whom were, like Mizelle, appointed by Donald Trump.