Commentary

Halsey Frank: Making sense of Judge Mizelle’s mask mandate ruling

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On April 18, Florida federal Judge Kathryn Mizelle invalidated the Centers for Disease Control and Prevention’s (CDC) order requiring that passengers wear masks on conveyances into and within the United States, and in transportation hubs. Conveyances include planes, trains, and road vehicles like buses, cabs and Ubers. In response, major airlines were quick to lift their mask mandates. Maine transportation providers eased their mask requirements as well.

Conservatives rejoiced at the decision and called Mizelle a hero. Liberals lamented it and labeled her an unqualified political hack, and said her reasoning was flawed. The Biden administration announced that, at the CDC’s request, it will appeal notwithstanding the fact that the mandate was scheduled to expire at the beginning of May. Liberals rejoiced.

The CDC issued the order in February of 2021. A person who failed to comply with its terms could be removed from the conveyance and subjected to civil and criminal penalties. In July, two regular travelers who declined to fly because masks made them anxious and an organization dedicated to personal freedom sued for declaratory judgment under the Administrative Procedure Act (APA). APA review cases are generally decided by motion based on an administrative record.

Judge Mizelle granted the plaintiffs summary judgment and vacated the order because it exceeded the CDC’s statutory authority, the agency issued the order without giving notice and allowing public comment, and because it did not adequately justify the order.

Mizelle noted that Covid-19 began spreading worldwide in December of 2019. In March of 2020, President Trump declared a national emergency. Covid continued to spread notwithstanding mitigation measures. It peaked in January 2021 and began to decline. President Biden took office and issued an executive order observing that masks can mitigate spread. The CDC issued its order shortly thereafter, reasoning that masks mitigate the spread of the disease by reducing the exchange of respiratory droplets.

In the context of our constitutional republic, the federal government has only the specific, enumerated powers that the constitution provides. The rest are reserved to the states and people. The judge explained that a federal agency like the CDC has only the power Congress delegates to it. She used standard tools of statutory interpretation to determine what the CDC’s authorizing statute meant, such as the plain meaning of its words, the context in which the words appear, contemporaneous understanding of the words as evident from dictionaries and usage at the time the statute was written (including the word “sanitation” which has attracted the most attention), and the statute’s history. 

That 1944 legislation gave the CDC the authority to identify, isolate, and destroy disease, and the authority to detain, examine, and conditionally release individuals infected with communicable disease. The authority to identify, isolate and destroy included the powers to inspect, fumigate, disinfect, sanitize, exterminate, and destroy animals and articles. It applied to contaminated things and property, not persons. 

The authority to detain, examine, and conditionally release applied to persons. Historically (and consistent with the federated scheme of our country’s government), state governments had primary responsibility for public health and disease control. The federal government played its limited role by quarantining and/or conditionally releasing foreigners entering the country and interstate travelers who were actually infected with communicable disease. 

The CDC mask mandate was more like an exercise of the power to detain and release individuals than the power to isolate and destroy contaminated things. That power was limited to travelers who were actually infected. The CDC rule went far beyond. It applied to local travelers on buses and in cabs, and to interstate travelers who weren’t infected. If sustained, the CDC’s power could extend to requiring that healthy people cough into their elbows, take vitamins, or social distance. If any government had the authority to require such things, it is state governments.

In addition, Judge Mizelle held that the CDC acted contrary to procedure. It did not adequately justify issuing its order without giving notice and allowing public comment as required by law. The CDC claimed it had good cause not to follow proper procedure because the spread of Covid-19 was a national emergency. But the judge found that the pandemic had been ongoing for a year and cases were declining at the time the CDC issued the order.

Giving notice and taking comments would not have been impracticable. It would not have taken much more time than what the CDC actually took. Other agencies like the Center for Medicare Services were able to provide notice and receive public comments for their rule changes. Masks were a significant national issue. Notice and comment was in the public interest, could have improved the rule and increased its legitimacy.

Judge Mizelle also held that the CDC acted in an arbitrary and capricious manner. It failed to reasonably explain why the rule was necessary. (The order cites seven studies it asserts “confirm the benefit of universal masking in community level analysis.”) It failed to explain the connection between facts it found and the rule it made. It failed to explore possible alternatives and explain why it chose the one it did. It failed to provide enough explanation for the court to conduct a meaningful review.

Finally, Mizelle ruled that nothing less than invalidating the rule in its entirety would provide the plaintiffs with the complete relief to which they were entitled. It would be impossible to direct an order to particular times, places, and carriers that the plaintiffs might travel and use.

This aspect of the decision troubles me. Judges who issue nationwide injunctions based upon the limited facts and arguments presented by a couple of parties in a particular case are inconsistent with the federated structure of our system and the role of courts within it. Both political parties have been obtaining them.

The problem is that courts are supposed to resolve the specific, concrete controversy in front of them. While their reasoning may have further persuasive effect, any relief they grant should be limited to that needed to redress the particular plaintiffs’ complaint (part of the problem here may be that the plaintiffs’ complaint was unfocused to begin with). Anything more than that should be up to a higher court or Congress.

As for the criticism that Judge Mizelle’s opinion is poorly reasoned, those sentiments say more about the politics of the critics than the quality of the opinion.

About Halsey Frank

Halsey Frank was born and raised in and around New York City and nearby Englewood, NJ. He graduated from the Dwight Englewood School, Wesleyan University and the Boston University School of Law. After law school, Halsey worked for the Department of Justice for 34 years, first as a civil litigator and later as a criminal prosecutor and civil attorney in the U.S. Attorney’s Office for the District of Columbia. In 1999, Halsey moved to Maine where he worked as a civil attorney and criminal prosecutor in the U.S Attorney’s Office until 2017, when he was nominated by the President and confirmed by the Senate to be Maine’s U.S. Attorney, the chief federal law enforcement officer for the District of Maine. Halsey retired from the Department of Justice in February 2021. Prior to becoming a U.S. Attorney, Halsey was active in local affairs, including the Portland Republican City Committee, the Friends of Portland Parks, the Friends of the Portland Public Library and the Maine Leadership Institute. He previously authored a column entitled “Short Relief” that appeared in The Forecaster regional newspaper. His views are his own.

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