If the CDC’s Mask Mandate Is ‘Necessary for the Public Health,’ Why Didn’t the DOJ Seek a Stay To Restore It?

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After a federal judge vacated the federal mask mandate for travelers last week, the Justice Department waited two days before filing an appeal. It said an appeal was contingent on whether the Centers for Disease Control and Prevention (CDC) thought the mandate “remains necessary for public health.” On Wednesday evening, the CDC confirmed that, in its view, “an order requiring masking in the indoor transportation corridor remains necessary for the public health.”

Yet while the Justice Department is now asking the U.S. Court of Appeals for the 11th Circuit to review U.S. District Judge Kathryn Kimball Mizelle’s ruling against the mask mandate, it did not seek a stay that would allow the CDC to reinstate this supposedly necessary edict while the case is pending. The mandate’s supporters say the appeal is aimed not at restoring the mask requirement so much as upholding the CDC’s lawful public health authority. The contours of that authority remain nebulous, however, and the version promoted by the agency’s defenders is alarmingly broad.

“Basically, [the Biden administration] is giving up on the mask mandate,” Georgetown University law professor Lawrence Gostin told The New York Times on Friday. “The administration’s goal is a legal principle, which is to ensure that the CDC has strong public health powers to fight COVID and to fight future pandemics. And it appears much less important to them to quickly reinstate the mask mandate.”

Gostin, who according to the Times “advised the White House on the case,” elaborates on that “legal principle” in a Times opinion piece published today. “Should the federal government have the power to address broad public health emergencies?” Gostin and civil rights lawyer Duncan Hosie write. As they see it, Mizelle “effectively answered no.”

Regardless of what you think about the wisdom of the CDC’s mask mandate, Gostin and Hosie say, “you should be alarmed by her decision,” because it “could prevent the federal government from effectively and nimbly responding to future pandemics.” Worse, “her approach and rationale could undermine the federal government’s authority to confront other big problems, from occupational health and safety to climate change.”

Gostin and Hosie see the mask mandate as a straightforward example of administrative law, which allows executive agencies to “fill in the details” based on a general charge from Congress. “Up until very recently, the statutory authority of the Centers for Disease Control and Prevention to try to curb the interstate or international transmission of an infectious, deadly disease was not in doubt,” they write. “The Public Health Service Act authorizes the C.D.C. to ‘make and enforce such regulations’ that in its ‘judgment are necessary to prevent the introduction, transmission or spread of communicable diseases.'”

Gostin and Hosie are quoting from the first sentence of 42 USC 264(a), the provision that the CDC cited as the legal basis for requiring that air travelers, public transit users, and taxi or ride-share passengers wear face masks. But as the Supreme Court noted when it blocked the CDC’s eviction moratorium, reading that opening sentence as a general grant of power “would give the CDC a breathtaking amount of authority.”

All sorts of restrictions and requirements—including nationwide lockdowns, a general vaccine mandate, and highly invasive limits on personal behavior—could be justified in the name of disease control. As the Court observed, “it is hard to see what measures this interpretation would place outside the CDC’s reach, and the Government has identified no limit…beyond the requirement that the CDC deem a measure ‘necessary.'” The Court found it highly implausible that such powers were lurking in a rarely used statutory provision, only to be discovered by the CDC 76 years after the law was enacted.

It is doubtful that the delegation of such vast authority to the CDC would be consistent with the separation of powers, which limits the executive branch’s role in lawmaking, or with federalism, since protecting public health is primarily a state and local function. That broad interpretation of Section 264(a) also seems inconsistent with the list of specific disease control measures that follows the opening sentence: “inspection, fumigation, disinfection, sanitation, pest extermination, [and] destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings.”

If the CDC had plenary power to “prevent the introduction, transmission or spread of communicable diseases,” there would be no need to mention specific policies. And while Section 264(a) also refers to “other measures” deemed “necessary,” the Supreme Court concluded that the list of specific examples “informs the grant of authority by illustrating the kinds of measures that could be necessary.”

The question for Mizelle, then, was whether the CDC’s mask mandate was similar to any of the listed measures. The CDC argued that the policy fell under the heading of “sanitation.” In her 59-page ruling, Mizelle offered several reasons for rejecting that interpretation.

Mizelle said common usage when Congress passed the Public Health Service Act in 1944 suggested that “sanitation” should be read narrowly, encompassing measures that involve cleaning something rather than keeping something clean. She noted that Section 264(a) seems “limited to property,” while other provisions of the Public Health Service Act deal with isolation and quarantine of individuals. If “sanitation” were read as broadly as the CDC prefers, she said, it would subsume other measures on the list, again raising the question of why Congress bothered to mention them.

Mizelle also was concerned that the CDC’s understanding of “sanitation” would raise the same basic issue as a broad reading of the provision’s first sentence or of “other measures.” According to one definition cited by the CDC, she noted, sanitation means the “applying of measures for preserving and promoting public health,” which would give the agency carte blanche to impose any policy it thought would help reduce the spread of disease—the same interpretation that the Supreme Court rejected.

The history of Section 264(a)’s application, Mizelle argued, is another reason to doubt the CDC’s current understanding of the law. Prior to 2020, she said, “perhaps the most notable use of this statute” was “a decision to ban small turtles due to a risk of salmonella.”

Gostin and Hosie describe Mizelle’s reading of “sanitation” as “strained and tendentious,” and even critics of the mask mandate have questioned her distinction between two senses of the word. While Mizelle’s analysis is “very thorough,” George Mason law professor Ilya Somin said in a Volokh Conspiracy post last week, “I remain skeptical.” He added:

The broader definition of “sanitation” strikes me as more intuitive and more in accordance with ordinary usage than the narrow one. Among other things, the narrow definition would lead to some counterintuitive results. For example, if the CDC enacted a regulation barring defecation on the floor of a plane or train, that would not qualify as “sanitation” under Judge Mizelle’s approach because it does not clean anything, but merely “keep[s] something clean” (in this case, the floor). Yet, I think, most ordinary people—both today and in 1944—would agree that a ban on defecating on the floor qualifies as a “sanitation” policy. And, as Judge Mizelle notes, courts are generally required to follow the ordinary meaning of words in a federal statute, unless there is some strong evidence to the contrary.

Somin thought Mizelle’s “best argument against the broad definition of ‘sanitation'” was the concern that it would violate “the canon against redundancy,” since “it does seem like the broad definition of ‘sanitation’ might make ‘disinfection,’ ‘destruction,’ and ‘fumigation’ redundant.” But he suggested that problem could be avoided by defining “sanitation” broadly enough to encompass the mask mandate yet narrowly enough to avoid the overlap:

“Sanitation” could be interpreted to refer to ordinary cleaning measures—both those that “remove refuse and debris” and those that help prevent it from arising in the first place (as with the rule against defecation!). By contrast, terms like “fumigation” and “disinfection” might refer to the use of chemical agents and other more sophisticated techniques to forestall (in the case of “fumigation”) or eliminate (in the case of “disinfection”) infection. “Destruction” also has a distinct meaning, of course, as even a broad definition of the other terms doesn’t necessarily allow complete destruction of possibly dangerous articles.

Such an approach probably would not satisfy Gostin and Hosie, who seem intent on reading Section 264(a) as giving the CDC a general disease control authority. “The C.D.C. claims no power that Congress [has] not explicitly given it,” they write. In their view, it makes sense that “an agency tasked with slowing the interstate spread of a highly infectious virus would regulate interstate travel” (although the CDC’s mask mandate also applied to intrastate travel such as bus, subway, and Uber rides). Gostin and Hosie, unlike the Supreme Court, also think that mission is clearly broad enough to encompass the CDC’s eviction moratorium (which likewise covered intrastate conduct), because that policy “was intended to prevent mass evictions and keep people out of congregate settings where Covid spreads most easily.”

In addition to concluding that the CDC had exceeded its authority under Section 264(a), Mizelle said the agency had violated the Administrative Procedure Act (APA) by failing to properly justify its decision to dispense with the usual public notice and comment procedures for new regulations. She also deemed the mask mandate “arbitrary and capricious” because the CDC “failed to adequately explain its reasoning.”

Somin does not think much of the latter claim. “While the transportation mask-mandate policy is badly flawed,” he says, “it is not so completely ridiculous as to be ‘arbitrary and capricious.'”

But Somin thinks “there is a very plausible case that the CDC violated the APA” by dodging notice and comment. “Even if the emergency nature of the situation justified bypassing notice-and-comment processes when the policy was first adopted in early 2021,” he says, “there is much less excuse for continuing to circumvent normal procedure during the many months that have passed since then. Notice and comment requirements, it should be emphasized, are more than a mere technicality. They allow people affected by regulations to have some voice, and to influence the government to mitigate their burdens.”

The 11th Circuit need not accept all of Mizelle’s arguments against the mask mandate to agree with her that it was legally invalid. And even if it agrees with the CDC that the mandate fits within Section 264(a), that will not amount to endorsing the sweeping powers that the agency unsuccessfully asserted in the eviction moratorium case, which the Supreme Court already has rejected.

The Biden administration may be hoping for a different outcome. “If a case is on appeal when the dispute becomes moot for reasons unrelated to the litigation,” the Times notes, “an appeals court can remand it to the district court with instructions not only to dismiss the case but to vacate the district court’s ruling—meaning wipe it from the books.” Citing University of Texas at Austin law professor Stephen Vladek, the Times suggests the administration “may be giving itself that option after the mandate’s planned expiration on May 3.” Instead of clarifying the CDC’s statutory authority, that result would leave it vague, allowing the agency to continue auditioning for the role of disease dictator.

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