The Hazard-Filled Ruling on the Transportation Mask Mandate

“At first blush,” Judge Kathryn Kimball Mizelle wrote in her order, on Monday, throwing out the federal mask mandate for people using public conveyances—planes, trains, Ubers—it might appear that the mandate was rather “closely related to the powers granted” to the federal health authorities by law. Indeed, it appears, at any blush, to be intimately related, which is why the ruling issued by Mizelle, a federal district-court judge based in Tampa, Florida, is so alarming. The Public Health Service Act of 1944 gives federal health authorities broad powers “to prevent the introduction, transmission, or spread of communicable diseases” by means of interstate modes of transport, and to do so by establishing rules related to “inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings,” as well as by “other measures” that in their “judgment may be necessary.” Legally speaking, requiring a mask on a plane or on Amtrak in the midst of a pandemic sounds like a fairly modest exercise of that authority.

Mizelle’s ruling, which inspired social-media videos of people gleefully unmasking on airplanes, was sudden and startlingly broad. She did not rely on narrow ground such as the fact that, at this stage in the COVID-19 crisis, hospitalization rates are low and vaccines are widely available, and so a transportation mask mandate might no longer be justified. Instead, she found that the Centers for Disease Control and Prevention never had the power to issue such a mandate and thus would not be able to do so in the future, no matter the shape of a future pandemic. (The Biden Administration is appealing the ruling.) And Mizelle did so not by invoking a grand constitutional principle but by deciding, to put it bluntly, that words didn’t have to mean what they appeared to mean. That she claimed to do this in deference to the language of the law, in the manner of a textualist, is just a down-market irony.

Mizelle, a former clerk for the Supreme Court Justice Clarence Thomas, was rated “Not Qualified” by the American Bar Association right before she was confirmed as a federal district-court judge in November, 2020. The A.B.A. rating was not based on anything untoward that she had done, or on any ideology she espoused, but on her lack of experience. (She was a thirty-three-year-old associate at a law firm at the time.) But her youth may have been seen, by Donald Trump and other Republicans, as a plus: federal judgeships are lifetime appointments, meaning that Mizelle could be on the bench for several decades. The plaintiff in the mask-mandate case is an organization called the Health Freedom Defense Fund, an advocacy group founded by Leslie Manookian, who is described on the group’s Web site as “a former successful Wall Street business executive.” The group was joined by two individual plaintiffs who said that the mandate kept them from travelling, in one case because the person believed that a mask would induce her to have a panic attack. (The mandate did exempt people with a range of 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 years to come.

The argument focussed on the word “sanitation” in the statute. Mizelle, noting the vintage of the law, had consulted various contemporary dictionaries. She found a couple of definitions, including, in a 1946 Funk & Wagnalls (“devising and applying of measures for preserving and promoting 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,” that is, keeping something clean, “include air filters or barriers, masks, gowns, or other protective equipment.”

She does acknowledge that this definition “would appear to cover the Mask Mandate,” but that meaning doesn’t seem right to her. For reasons that are hard to explain, she prefers definitions that better describe taking out garbage, such as “acts that remove refuse or debris from an area or object.” She claims that this meaning of sanitation “would preclude” the mandate, which, for all the flipping through of dictionaries, seems to be the actual reason that she prefers it. “Wearing a mask cleans nothing,” she writes. “At most, it traps virus droplets.” None of this is entirely logical or even textually coherent; for example, one definition that she puts in the mask-precluding category—“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 ground that it could also apply to the other terms in the statute, such as disinfection and fumigation. This is a bit confounding, because the definition’s appropriateness is what she seems to be saying disqualifies it—as if the definition were somehow too fitting to be correct.) She doesn’t even allow that the C.D.C.’s reading of the statute was “reasonable.”

The statute, again, also refers to “other measures.” But, in Mizelle’s reading, there is a meta-requirement, which appears nowhere in the text, that the specific rule that provided the basis for the mask mandate can only apply to “property,” not to “liberty.” It’s not really clear what she means by either term. Her rationale, such as it is, is that other parts of the statute explain when health authorities can detain someone entering the country, which she puts in her “liberty” box, and that being required to wear a mask is in the same category as being subject to “detention” or “quarantine”—and so the part of the law that the C.D.C. cited for the mask mandate can’t possibly apply. More than that, she depicts the mandate as a measure imbued with violence: people who don’t wear masks “are forcibly removed from their airplane seats, denied boarding at the bus steps, and turned away at the train station doors—all on the suspicion that they will spread a disease.” One of the many corrosive aspects of Mizelle’s ruling is the implication that raising the possibility that someone might be carrying a virus is akin to an accusation of guilt—making them the object of “suspicion.” Reading the order is like watching someone do a cryptic crossword puzzle: trying out unlikely or double meanings and scrambled terms in a stubborn effort to fill in a series of blank, ideologically arranged squares. (Ruth Marcus, of the Washington Post, referred to Mizelle’s order as “advocacy masquerading as lawgiving.”)

Mizelle also found that the C.D.C. had, in issuing the mandate, failed to comply with something called the Administrative Procedure Act, by not giving proper notice or explaining the reasoning behind the rules—for example, laying out how the mandate could be effective when infants and toddlers or people eating and drinking are exempt. This part of Mizelle’s order is more tethered to reality, and, if her order had vacated the mandate solely because of such procedural issues, it would have been far less troubling. There would still have been questions about a single federal judge overturning the rule nationwide—a subject of frequent contention in recent years, by both Democrats and Republicans—but the C.D.C. could, now and in the future, address its A.P.A. problem by better communicating its thinking. The mask-mandate power itself would not have been at issue. The mandate was due to expire on May 3rd, in any event, and it might have been altered or set aside even without Mizelle’s acting. But her decision as a whole goes far beyond both the A.P.A. and the boundaries of good sense.

The scope and the legal wackiness of the order are both reasons that the Biden Administration is appealing it, but also why the Justice Department has seemed, in the past few days, to be proceeding cautiously. It has not asked for the order to be stayed pending an appeal, for example, which, as the Times noted in a piece on the legal game theory involved, Attorney General Merrick Garland referred to as a matter of “tactical strategy.” The worry seems to be that a false litigation move that leads to another judge precipitously affirming Mizelle could solidify the order. After all, what’s waiting at the end of a potential chain of appeals is a Supreme Court with six conservative Justices, three of whom were, like Mizelle, appointed by Donald Trump.

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