Last week, a Trump appointed federal judge struck down a CDC mask mandate for all public transit – including air travel. This decision is in the middle of a number of political fights over the authority of the administrative state, dismissiveness towards the dangers of covid in general and animosity about mask mandates specifically. 

Mask mandates on public transportation are a common sense public health measure that reduces the spread of covid without forcing anyone to have a vaccine or even quarantine. It seems about on the same level as requiring people to wear shirts on airplanes. 

So it’s no surprise that the legal justifications of striking down the CDC requirement don’t really make any sense. 

US District Judge Kathryn Kimball Mizelle for the Middle District of Florida struck down the February 2021 order from the CDC by claiming it “violates the procedures required for agency rulemaking.” 

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Basically, Mizelle threw out a common sense public health mandate from the CDC that seems squarely in its authority, because she arbitrarily redefined “sanitation” so it does not include masks.

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However, it seems clear the CDC was well within its authority to require masks on public transit, because of the 1944 Public Health Service Act. It gives the government broad power to:

provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary.

The CDC argued the mask mandate fit under the government’s power to provide/require “sanitation.” However, Mizelle rejected this argument. She claimed masks are not “sanitation.” “Sanitation” means actively cleaning or sanitizing. Masks don’t do that, she said. 

However legal experts, such as law professor Erin Fuse Brown, say that’s a misunderstanding of the legal meaning of “sanitation.” It refers to traditional public health measures to prevent the spread of disease.

In her written opinion, Mizelle offers two definitions: “sanitation may refer to measures that clean something or that remove filth, such as trash collection, washing with soap, incineration or plumbing” and “sanitation may refer to measures that keep something clean.” 

Mizelle acknowledges that examples of the second definition could include “air filters or barriers, MASKS, gowns or other personal protective equipment.” She admits this second definition would cover the mask mandate but argues the first would preclude it and uses that definition as controlling because of the context of the law in 1944 …

Or something. 

I’m honestly not sure. 

Basically Mizelle threw out a common sense public health mandate from the CDC that seems squarely in its authority, because she arbitrarily redefined “sanitation” so it does not include masks.

In addition to the CDC’s authority to mandate public health measures, like masks, to prevent the spread of disease, Section 361 of the Public Health Service Act also grants federal officials the authority “to prevent the introduction, transmission or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other state or possession.” 

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This section is commonly used to justify quarantines, a much more extreme measure than masks, but it also seems to justify other public health measures that would “prevent the introduction, transmission or spread of communicable diseases” over state lines. 

The US Justice Department is appealing Judge Mizelle’s ruling. If it fails, however, this ruling could have disastrous effects for the CDC’s authority outside mask mandates. 

While the Supreme Court had said the CDC acted outside its authority by enforcing an eviction moratorium, its authority to impose a mask mandate on public transit is more obvious. It involves interstate travel and commerce, the clear purview of the federal government. 

Historically, quarantine police powers or vaccine requirements have been upheld by the Supreme Court but many of the relevant cases dealt with state laws, not federal ones. 

While some local governments are keeping the mask mandate, like New York and the MTA, states have no authority to impose public health measures on interstate flights, though some are continuing to require masks in airports. 

Therefore, if the CDC, a federal regulatory agency, doesn’t have the authority to require masks in a public health emergency, who does?

Unfortunately, there seems to be a conservative strategy to attack the powers of the administrative state across the board. 

The Supreme Court has agreed to hear two cases this term that have the power to undermine the authority of administrative agencies. 

In American Hospital Association v. Becerra, the court will revisit a 1984 decision, Chevron U.S.A. v. Natural Res. Def. Council, that gave regulatory agencies latitude in interpreting their authority. 

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Becerra questions if the US Department of Health and Human Services has the power to set reimbursement rates under the Chevron understanding of agency power. 

West Virginia v. Environmental Protection Agency considers whether the Clean Power Plan, which the Supreme Court already suspended, as part of the Clean Air Act, gave the EPA too much power under the nondelegation doctrine, a judge-created doctrine. 

The nondelegation doctrine states that the Congress cannot give a regulatory agency so much power that they can effectively create new law without the Congress. 

Since the case concerns a regulation that isn’t in effect, it’s not clear how the Supreme Court has jurisdiction to hear a dispute without a live dispute between parties. 

Despite that, this case could strip the Congress’s power to authorize the EPA to issue regulations that could ultimately limit the ability of all regulations to issue regulations. 

If the Supreme Court uses these two cases to limit the power of regulatory agencies, the CDC’s ability to protect us using public health measures will be drastically limited.

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While the legal basis for throwing out the mask mandate amounts to an arbitrary definition of the word “sanitation,” it’s also particularly frustrating to see covid protections consistently treated as more dramatic and extreme than other commonplace rules and regulations. 

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While the legal basis for throwing out the mask mandate amounts to an arbitrary definition of the word “sanitation,” it’s also particularly frustrating to see covid protections consistently treated as more dramatic and extreme than other commonplace rules and regulations. 

Airlines still have dress codes and reserve the right to not let you fly if you’re wearing “lewd” clothing but won’t require masks for the safety of passengers. 

International travel has long required certain vaccines, as have certain jobs and public education. 

But somehow applying the covid vaccine in a similar way is beyond the pale. 

Let’s hope the DOJ’s appeal works and the CDC mask mandate will once again be in effect for air travel.

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