Broad, limited, or no powers at all? What’s at stake in the mask mandate appeal
The 11th Circuit is one of the most conservative federal appeals courts in the nation, with seven judges appointed by Republican presidents and four by Democrats. This sets a precedent for much of the southeast. Any of its decisions can be appealed to the Supreme Court.
If that had happened, what the judges would have done is also unclear. They ruled against some of the Biden administration’s pandemic policies. For example, the court stated that the CDC did not have the right to renew moratorium on eviction prevent the interstate spread of the disease. The Biden administration also lost a challenge to a rule establishing vaccination or testing requirements for workers at large employers. However, the court upheld the administration’s demand to vaccinate medical workers.
“It doesn’t look like the Supreme Court is siding with the government on this issue,” Fuze Brown said. “But enough people are saying it’s worth the risk because right now the CDC is neutered.”
The experts also noted that, due to the way the judge’s decision was worded, the dictionary could become a key witness in future proceedings.
In her ruling, District Court Judge Katherine Kimball Mizell, appointed by President Donald Trump, devoted several pages to discussing the meaning of the word “sanitation.”
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The word is part of the Public Health Service Act of 1944. It states that the Surgeon General has the power to make regulations deemed necessary to prevent the spread of infectious diseases. The law goes on to suggest several ways to do this, including “disinfection,” “fumigation,” and, as Misel points out, “sanitation.”
Miselle’s decision states that her court examined current and historical dictionary definitions of the word and chose one of them. According to Miselle, wearing a mask falls short of that narrow definition because it “doesn’t clean anything.” (She rejected another definition, which meant keeping something clean, which could include wearing protective masks.)
Her definition can be challenged, said Lawrence Gostin, who is professor and director of the O’Neill Institute for National and Global Health Law at Georgetown University. “If you look at the historical significance in 1944 and earlier, sanitation was for hygiene and public health,” Gostin said.
Even some critics of the mask mandate, such as Somin, have said that Mizel’s definition of “sanitary” may be too narrow. It would also interfere, he noted in blog entry for Reason magazinea hypothetical CDC ban on “defecating” on the floor of a bus or plane because such a ban “cleans nothing”.
Other elements of the public health statute create potential arguments, especially the part that says public health officials can take “other measures” they deem necessary.
Hodge said the Justice Department is likely to prove that the mask-wearing mandate for interstate travel clearly fits into that category. But that would require the Biden administration to convince the court that Miselle’s decision was a “gross misinterpretation” of statutory law.
“If they succeed, they can win the case,” Hodge said.
Not so fast, Somin said.
The law should be interpreted “narrowly enough to prevent the CDC from restricting virtually any human activity that could potentially spread disease, which the Supreme Court (correctly) ruled was unacceptable” in an eviction moratorium case, he wrote in another recent Blog Post.
A second, very separate statute may also come into force.
One of the most dubious elements of Miselle’s decision is her claim that the government failed to comply Law on Administrative Procedures, a law that clarifies how the federal government must create rules, including a requirement that it generally solicit public comment on a proposed rule within at least 30 days. The mask rule was introduced without a public comment period.
“This is the strongest argument against the government in this case,” Somin said.
The government argued that it must act quickly as the pandemic rages on, and that under such circumstances it is allowed a “good reason” exception.
Deaths due to COVID in January 2021 were at an all-time high when the mask order advanced, averaging more than 3,000 per day, and new options emerged.
The order came into force on February 1, 2021.
Now it comes down to “either the CDC has the power or it doesn’t,” Gostin said. “It hangs like a black cloud over the Centers for Disease Control and Prevention. They want a solution.”
Kaiser Health News is a national health policy news service. It is an editorial independent program of the Henry J. Kaiser Family Foundation and not affiliated with Kaiser Permanente.