Empower Wisconsin | Jan. 19, 2023
By Caroline Downey, National Review
The Justice Department on Tuesday asked an appeals court to reverse an April 2022 ruling that overturned the CDC’s public transportation mask mandate.
Appearing before a three-judge panel of the 11th Circuit Court of Appeals, Justice Department lawyer Brian Springer argued that the CDC should have the authority to declare universal mask requirements during a public-health crisis, such as the COVID pandemic. It is necessary “to prevent the possible infections and deaths that could result if people didn’t do the simple thing of just putting on a mask while they were traveling,” Springer argued, according to Reuters.
U.S. District Judge Kathryn Kimball Mizelle ruled last year that the CDC’s mask mandate violated the Administrative Procedure Act (APA) because it was implemented “without allowing public participation through the APA’s notice and comment procedures.”
Mizelle, appointed by former president Donald Trump in 2020, foundthat the mandate lacked specificity. For instance, it “did not differentiate between kinds of masks based on their efficacy at blocking transmission.” The rule did not discriminate between cloth masks or N-95 medical grade masks, including only a footnote directing readers to CDC guidance on “attributes of acceptable masks.”
The day after Mizelle’s decision was handed down, the Justice Department announced it would appeal but not seek an emergency stay, meaning the mandate would not be enforced pending litigation. In court Tuesday, attorney Brant C. Hadaway, representing the original plaintiffs who filed a lawsuit to eliminate the mandate, questioned why the CDC did not pursue an immediate decision given that the pandemic was still ongoing in spring of 2022.
“This is not about an urgent matter of public health,” Hadaway said. If the Biden administration felt restoring the mandate was an imperative and a “matter of life and death,” it would have taken emergency action back in April, he said.
Mizelle noted that the CDC’s power to impose the mandate had to be derived from a specific line of the Public Health Services Act, which allows public-health measures that provide for “inspection, fumigation, disinfection, sanitation, pest extermination, destruction, . . . and other measures.” The government claimed the mask mandate fell under the “sanitation” clause. Mizelle rejected that stretch in logic on the grounds that “sanitation” is strictly limited to cleaning measures.
“Wearing a mask cleans nothing. At most, it traps virus droplets. But it neither ‘sanitizes’ the person wearing the mask nor ‘sanitizes’ the convenance. Because the CDC required mask wearing as a measure to keep something clean — explaining that it limits the spread of Covid-19 through prevention, but never contending that it actively destroys or removes it — the Mask Mandate falls outside of §264(a),” the order read.
Mizelle agreed with the suing parties that the mandate was capricious and arbitrary, and that the CDC failed the reasoned-explanation standard for imposing it.
Read more at National Review.