Masking the Mask Mandate Morass

The Centers for Disease Control and Prevention is a federal agency within the Department of Health and Human Services. Over the years, and especially in the COVID era, HHS has come to stand for Health through Human Servitude. But on Monday, a federal judge struck down the slavish federal mask mandate, the nagging reminder of the coerced intimacy (viz. rape) of bureaucratic rule. 

Alerted of the change midair, passengers and crew cheered their liberation. 

Horrified by the loss of their sham authority, the master class counterattacked by assailing the opinion and particularly the Florida federal judge who wrote it. It turns out that Kathryn Kimball Mizelle became a federal judge at the young age of 33 and moreover was nominated in September 2020 by President Trump and confirmed in post-election December by the old Republican Senate. 

Even worse, she had clerked for Justice Clarence Thomas, among other judges disagreeable to the cognoscenti, including Judge William Pryor of the 11th Circuit Court of Appeals. At least as damnable, Mizelle was a John Marshall Fellow of the Claremont Institute in 2017. There, she doubtless met the now-notorious John Eastman, the Institute’s Center for Constitutional Jurisprudence director who would become the Trump legal adviser and alleged 2020 “coup” co-conspirator. Doesn’t this association by itself merit impeachment? Or surely investigation by the January 6 committee! On at least one legal listserv, leftist law professors compared her to a dog. That deserves a legalistic reply: Subject her to a writ of man-canis! A canis indeed!

As with Justice Thomas’ opinions, we should let Judge Mizelle’s liberating opinion speak for itself. 

The judge takes up four counts of the two challenging parties, who argued that mask-wearing caused them anxiety attacks. First, the mandate exceeded the CDC’s statutory authority. Second, Congress improperly delegated powers to the CDC. The third and fourth counts allege the CDC violated the Administrative Procedures Act, a foundational 1946 law for the administrative state. I will keep my comments to counts one and two, which suffice to make the plaintiffs’ case against the mask mandate. They are also the most instructive for the evils masked by the imposition of masks.

The judge has a solid precedent in a 2021 Supreme Court case, Alabama Association of Realtors v. Department of Health and Human Services, which struck down the CDC’s authority to forbid tenants from being evicted because homeless persons have increased chances of contracting COVID. (The law does not explain how apartment owners are supposed to pay their quarterly taxes if they aren’t receiving rent.)

In lines Mizelle did not cite, that per curiam Court opinion snarked, “Could the CDC, for example, mandate free grocery delivery to the homes of the sick or vulnerable? Require manufacturers to provide free computers to enable people to work from home?” Mizelle adds that another court found that the CDC had exceeded its powers in preventing a cruise ship from sailing. But is mask-wearing closer to what the 1944 law authorized than playing landlord?

No, a close reading of that law, she explains, applied to produce or animals or certain diseased individuals. “A requirement that individual travelers wear a mask is not inspection, fumigation disinfection, destruction, or pest extermination, and the government does not contend otherwise.” Instead, the mask mandate is said to be “sanitation” or “other measure” akin to sanitation. 

Again, one sanitizes or cleans objects, not human beings. Masks do not sanitize anything. Sanitation methods include “fumigation,” “disinfection,” and even “destruction.” Unfortunately, even vaccination requirements upheld in Biden v. Missouri (2021), when Justice Brett Kavanaugh fumbled the ball, are restricted to a particular subset of people: health care workers. As Justice Thomas wrote in his dissent: “If Congress had wanted to grant [the Centers for Medicare and Medicaid Services] authority to impose a nationwide vaccine mandate, and consequently alter the state-federal balance, it would have said so clearly. It did not.”

The law does permit detention and quarantine of individuals who have a contagious disease. Such persons may be removed from planes, denied seats, or turned away. But no one may be compelled to wear a mask or be subjected to other treatment unless they are infected or, possibly, come from a foreign country. But the mask mandate applied to all travelers, regardless of their origins. 

The opinion also addresses the government’s “Chevron deference” assertion. In this concoction, judges are supposed to defer to a government agency’s interpretation of the laws it regulates. This was supposedly an attempt to keep the bureaucracy within an elected branch of government and, therefore, closer to the font of legitimacy, the people. The late Justice Antonin Scalia used to fall for this illusion, until accepting correction from Justice Thomas. 

Following Thomas, Mizelle shoots down this contention: “A court may not rest on Chevron to avoid rigorous statutory analysis.” Otherwise, the CDC could claim powers to require “mandatory social distancing, coughing-into-the-elbows, and daily multivitamins.” The judge finds that the CDC here claims powers to “require that owners, operators, and employees of transit facilities use their best efforts to enforce the CDC’s commands on the public. And all this with the threat of civil and criminal penalties . . . .” 

Given the drastic consequences of the mask mandate, the government was obliged to have a “notice and comment” period before the rule was implemented, but it did not. This allowance of “arbitrary and capricious” government power violates the Administrative Procedures Act. Instead, “the CDC here spent approximately two weeks considering and drafting the Mask Mandate after the President called for it.” A rule that penalizes first-time offenders anywhere from $500 to $1,000 for an offense, with the penalties topping $3,000 for repeat offenders, plus the airlines’ penalties, must have public comments.

The weakest portion of the judge’s opinion comes when she speculates on alternatives to mask-wearing, such as “testing, temperature checks, or occupancy limits,” or specification on types of masks and other anti-COVID strategies such as “social distancing [or] frequent handwashing.” The regulation she challenges is both over and under-inclusive. For all that, the opinion does illustrate the arbitrariness of the mask mandate amidst all the other Faucist orders. “In sum,” Mizelle writes, “irrespective of whether the CDC made a good or accurate decision, it needed to explain why it acted as it did.” Legitimate government must be based on the consent of the governed. And the anti-COVID regime failed this test.

One issue with the judge’s order is that it applies nationally, an aggravation for Justices Thomas and Alito. Anytime a federal district judge’s order extends beyond his region, any friend of constitutional government should take heed, though leftists didn’t seem troubled when Donald Trump was president. In this case, however, airline regulation would necessarily apply nationally and not just to part of Florida

Any significant assault on the administrative state is going to be messy. Political consistency and principle are not the same as pure legal doctrine.

The Biden Administration has announced it will appeal the case, but it faces some bad alternatives. It might be better off addressing the court’s concerns over the Administrative Procedures Act, though that won’t deal with the significant hurdles in the district court opinion. Any pro-mask mandate legislation would never get through Congress. An appeal would ordinarily go to the 11th U.S. Circuit Court of Appeals, the most conservative federal court in the country. An example of the horror of legal elites showing how badly they are stuck with this decision is their proposal that a special federal district court panel be created for such cases—a major concession that the administrative state is self-contradictory and flawed.

Assuming the 11th Circuit affirms Mizelle’s decision, the Supreme Court on appeal could simply affirm the circuit court opinion, with some spirited concurrences and dissents, thus leaving the district court’s order in place (perhaps modified by the appeals court). But if the Supreme Court does this, the CDC’s wide-ranging dictatorial powers over COVID would be rejected decisively, just as it did with the regulation forbidding tenants from being evicted for nonpayment of rent. 

The Biden Administration might be better off with ambiguous defeat than clear, humiliating legal rejection. Allowing the CDC’s May 3 emergency order update to expire might be their best strategy—allowing Judge Mizelle’s order to become moot since her decision would apply to an expired regulation. Either way, the pro-mask stance would stir massive resistance from customers (aided by the airlines) to borrow a phrase from an evil time. Biden and his leftist friends would then have to be content with trolling the judge and all of her associates—until the next case or election.


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About Ken Masugi

Ken Masugi, Ph.D., is a distinguished fellow of the Center for American Greatness and a senior fellow of the Claremont Institute. He has been a speechwriter for two cabinet members, and a special assistant for Clarence Thomas when he was chairman of the Equal Employment Opportunity Commission. Masugi is co-author, editor, or co-editor of 10 books on American politics. He has taught at the U.S. Air Force Academy, where he was Olin Distinguished Visiting Professor; James Madison College of Michigan State University; the Ashbrook Center of Ashland University; and Princeton University.

Photo: Patrick T. Fallon/AFP via Getty Images