IE 11 is not supported. For an optimal experience visit our site on another browser.

The judge striking down the CDC's mask mandate doesn't seem to understand how disease works

The federal court ruling effectively clips the wings of the CDC, putting Americans at greater risk during a pandemic that — surprise! — is far from over.
Image: A passenger wearing a protective mask sleeps during a flight.
An airline passenger wears a protective mask on Apr. 28, 2021.Bing Guan / Bloomberg via Getty Images file

UPDATE (April 20, 2022, 7:42 p.m. ET): The Justice Department has moved to appeal the ruling striking down the Centers for Disease Control and Prevention's mask mandate on planes, trains and transit systems at the request of the CDC.

Starting this week, it is your choice whether to wear a mask on airplanes and other modes of public transportation. In a tortured ruling that could hobble the power of the Centers for Disease Control and Prevention, a federal judge in Florida struck down the mask mandate imposed by the CDC.

Judge Kathryn Kimball Mizelle concluded that the mandate failed for two reasons. First, she said the CDC had exceeded its statutory authority. (And yet, it did not — we’ll get to that later). Second, she said the CDC had violated applicable procedures. (Again, it did not.)

All of this misunderstands how the federal government can and does function.

Mizelle was nominated by then-President Donald Trump shortly before the 2020 election. The Senate approved her nomination on a party-line vote during its lame-duck session. Before joining the federal bench herself, Mizelle clerked for Justice Clarence Thomas and served in the Department of Justice in the Trump administration. The American Bar Association rated Mizelle as “not qualified” to be a judge based on her lack of practice experience.

We should all be careful about drawing conclusions regarding legal rulings based only on the party affiliation of the president who nominated the judge who wrote the ruling. As a bias check, I read the court’s opinion before I looked at who wrote the opinion. As I read the opinion, I whisper screamed to myself, “Why would anyone read the CDC’s authority as being this narrow?” and, “Is this a political conclusion masquerading as a legal decision?” and, “Does the author of this opinion want to limit the power of the CDC or all federal agencies?”

Next moves for mask mandates

April 20, 202205:44

But whisper screaming really loses some of its fun when you do it alone. So allow me to explain the court’s ruling in more detail and then perhaps you’ll join me.

First up, a provision of a federal law known as the Public Health Services Act says that the surgeon general and the secretary of Health and Human Services (which has been expanded to include the CDC) can make regulations that are, in the CDC’s judgment, “necessary to prevent the introduction, transmission, or spread of communicable diseases” from foreign countries into the U.S. and from one state to another. The next sentence of the law says that to carry out and enforce those regulations, the surgeon general (whose authority here is delegated to the CDC) may provide for “sanitation” and “other measures, as in his judgment may be necessary.”

Mizelle said the CDC went beyond its congressional grant of authority. Put another way, the CDC acted without power when it implemented the mask mandate because a mask mandate is not “sanitation” or “other measures” similar to sanitation. Mizelle then spent about a dozen pages explaining why the word “sanitation” should include “active measures to cleanse something,” but not measures to “preserve the cleanliness of something.” As a matter of pure coincidence, a broader reading of the word definition would have allowed the CDC to impose the mask mandate. Mizelle next determined that she should not give the federal agency the deference it is typically due when it interprets a statute that it administers. Why? Presumably because doing so would present a roadblock for Mizelle to get to her desired result.

The American Bar Association rated Mizelle as “not qualified” to be a judge based on her lack of practice experience.

What about the words “other measures,” you ask? The government quite rationally argued that this, along with the word sanitation, would allow the CDC to implement “traditional techniques that impede the spread of a disease.” Mizelle disagreed.

We could decide to dive further into the case, but I worry we would drown under the weight of Mizelle’s repeated fears of federal government overreach. The opinion is laden with disparaging comments about the government's “breathtaking” argument that the CDC (yes, that’s right, which stands for the Centers for Disease Control and Prevention) does in fact have the power to, well, control diseases.

The second reason that Mizelle said the CDC mask mandate fails is that the CDC violated the Administrative Procedures Act, which requires that agencies engaged in rule-making must provide the public with notice and the ability to comment. You might be asking yourself why there isn’t a “good cause” exception to the notice and comment period for situations that might require quick action. The answer is that there is, but Mizelle found it was not satisfied here. Here the government was able to point to the “public health emergency” caused by Covid-19. Mizelle concluded that it was insufficient for the government to point out that Covid-19 caused a public health emergency and that time was of the essence. All of this misunderstands how the federal government can and does function.

While I get you a lozenge to soothe your voice from all of your whisper screaming, allow me to add one more wrinkle to our enraging tale. While some may say that the CDC mask mandate was set to expire in mere weeks, this is not just about the mask mandate. It is about the next time the CDC needs to act quickly. It is about allowing a federal court ruling that would clip the wings of the CDC without a strong and immediate rebuke.