This article about a judge’s problematic decision regarding the CDC mask mandate was written by Dorit Rubinstein Reiss, Professor of Law at the University of California Hastings College of the Law (San Francisco, CA), who is a frequent contributor to this and many other blogs, providing in-depth, and intellectually stimulating, articles about vaccines, medical issues, social policy, and the law.
Professor Reiss writes extensively in law journals about the social and legal policies of vaccination. Additionally, Reiss is also a member of the Parent Advisory Board of Voices for Vaccines, a parent-led organization that supports and advocates for on-time vaccination and the reduction of vaccine-preventable diseases. She is also a member of the Vaccines Working Group on Ethics and Policy.
On April 18, 2022, Kathryn Kimball Mizelle, a federal district judge in Florida, struck down the CDC mask mandate on public transportation. The analysis was highly problematic since it second-guessed the agency’s judgment on public health, ignored existing precedent and the natural meaning of the statute interpreted, and implied that COVID-19 is not a serious issue, discounting hundreds of thousands of deaths and millions of cases of serious illness. It also analyzed the procedural framework in a way, not in line with the usual operation of administrative law.
It is a strong example of judicial aggressive second-guessing of the political branches’ choices. And doing so in a way that will, literally, kill and harm people – and goes again the majority preferences. In any way, shape, and form it is a failure to fill the judicial role.
The case against the CDC mask mandate
The case was brought by a non-profit I’m not familiar with, but it is run by a long-standing anti-vaccine activist, Leslie Manookian. The organization, Health Freedom Defense Fund Inc., sued in their name and in the name of two of its members, one that claims she flies and the masks are a medical problem for her, and one who claims she hasn’t flown because of the mask mandate.
These claims are enough to provide the plaintiffs with standing. However, remember the fact that the lawsuit was brought based on the plaintiffs’ interstate travel. Because we will go back to that.
On February 3, 2021, the CDC published an “order” in the federal register requiring masks on “conveyances” and “transportation hubs” into and within the United States. The CDC relied on its authority in §42 U.S.C. 264(a) to issue the order, and it was explicitly an “order” and not a rule, which will become relevant.
The order provided exemptions for children under 2 years of age (in accordance with CDC’s recommendations to exempt such children) and for people with a disability under the Americans with Disabilities Act that cannot wear a mask safely because of that disability. It also exempted people in some situations – like during eating, drinking, or taking medication “for brief periods”, if you need to communicate with the hearing impaired and seeing the mouth is “essential”, if you need an oxygen mask in the plane, if unconscious or incapacitated, and to verify identity “temporarily”.
Operators were to use “best efforts” to ensure compliance.
This was not the only case challenging the mandate, but it was the first decision, and the judge issued a nationwide order.
Does the CDC have the power to impose a mask mandate on transit?
The bulk of the opinion addressed whether the CDC has the power to require masks on transportation. This required the judge to interpret §361(a) of the Public Health Services Act of 1944, usually referred to by its number in the United States Codes, a codification of statutes by topic, which is §264(a) (42 U.S.C. §264(a), if you want a full citation). The section reads:
The Surgeon General, with the approval of the Secretary [of Health and Human Services], is authorized to make and enforce such regulations as in his judgment are necessary 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. For purposes of carrying out and enforcing such regulations, the Surgeon General may 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.
Although the section talks about the surgeon general, this power has been delegated to CDC. This language reads – and has for years been thought to – provide the CDC with very broad powers to respond to infectious diseases. Those powers have not, however, been fully tested. The other sections of §264 address the power to detain or quarantine, and those powers have been used, but rarely, until the pandemic. But in the decades leading to COVID-19, the CDC did not have much occasion to use these apparently broad powers. The CDC does a lot of things, but its role in previous public health crises has been mostly one of guidance, help, and support, rather than broad regulations.
The COVID-19 pandemic tested the CDC’s powers, and the CDC’s record has been mixed. It certainly made mistakes. It also – both under the Trump administration and under the Biden administration – used its powers in new ways. For example, it issued a nationwide moratorium on evictions that lasted from July 2020-September 2021, spanning two administrations.
In a case before this, the Supreme Court found that the moratorium exceeded CDC’s powers. This decision followed several lower court decisions that interpreted the Public Health Services Act narrowly by reading the second sentence in the act to limit the first – to suggest that the seemingly broad powers in the first sentence are limited to the type of actions provided in the second sentence, like “inspection, fumigation, disinfection, sanitation..”.
It’s not a necessary interpretation, and several other lower court decisions were found differently. But it was there, and apparently embraced by the Supreme Court.
To respond to this narrowing and avoid being struck down, the Department of Justice, arguing the case, did not try to ground CDC’s power in the broad powers delegated in the first sentence, but argued that the mask mandate fits under “sanitation” or “other measures akin to sanitation” in the second sentence. A reasonable argument.
The judge, in a problematic analysis, rejected it. The judge looked at “dictionaries from the early and mid- 20th century to begin its analysis.” If you’re arguing why the judge is following an approach that seeks to give the words the meaning the legislature that enacted it had for them. This is not the only way a judge may interpret the words, but it fits into one strain of interpretive approaches in our system, an approach called “originalism”.
The judge, on looking, found that at the time there were at least two meanings of the term sanitation relevant here. One is to clean something or remove dirt. The other is to keep something clean. The mask mandate would not fit well into the first meaning but fit comfortably into the second one.
This, under existing precedent, should have been the end of the discussion, under the judge’s own approach. There was a legitimate interpretation in place at the time of enactment that upheld the CDC’s power. Under the Supreme Court’s ruling in Chevron v. Natural Resources Defense Council (1984), if there are multiple permissible interpretations the agency gets to choose between them. Conservative judges may not like Chevron, but it’s still a Supreme Court precedent of long-standing, a core part of our administrative law, and a district court judge is bound by Supreme Court precedents.
But the judge did not follow Chevron on the CDC mask mandate. How?
The judge decided she must choose the better interpretation, despite Chevron’s clear command to the contrary. The judge did not completely ignore Chevron – in a later part of the decision she tried to excuse her disregard of it – but her reasons for ignoring it are unconvincing.
The judge stated that the statute’s context supports a narrower reading of sanitation, to read it as only keeping things clean. Looking at “inspection, disinfection, … pest extermination, destruction,” the judge decided that they all fit better into making things clean than keeping them clean. That may be true for disinfection, pest extermination, and destruction, but it doesn’t actually fit inspection.
Given that, there is no good reason to think that the words in that sentence are all referring to the same thing, rather than listing different permitted actions that may be good for preventing disease. Again, “inspection” isn’t a good fit for the other words, so if they’re all supposed to be of a kind, why is it there? It is just as legitimate to see the list of different kinds of actions the CDC can take to prevent disease.
The interpretation of sanitation as not allowed to keep things clear is also counter-intuitive. As pointed out by an observer much more sympathetic to the judge’s decision, Prof. Ilya Somin stated that:
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.
The judge then uses what she describes as an empirical approach to examine meaning – “corpus linguistics” – to allege that “the most common meaning” of sanitation was to clean something. She acknowledges that about 5% of sources used sanitation as maintaining cleanness, but dismisses that as not enough.
As pointed out by Attorney Michael Smith, that’s more than a little problematic. The judge does really tell us her methodology for doing the search; the rate at which her preferred meaning appeared; what were other meanings used; and how common were they. Further, regardless of whether, on knowing the methodology, her search will turn out to be valid or not, the other meaning was in use at the time – maybe not as often, but it was a valid meaning – and she cannot be certain that was not the meaning Congress had in mind.
I would add that, as Judge Mizelle pointed out, context matters, and the decision in no place discusses what would have been the meaning thought of in the context of preventing infectious diseases. Given the knowledge at the time – and sanitation projects were taken to prevent diseases, for example by installing drainage, modern sanitation infrastructures, etc, all of which are meant just as much to keep things clean as to clean them – I’m not sure she can uphold her view that in 1944, Congress intended to give only the power to order the narrow meaning of sanitation.
In fact, the 1940s saw substantial federal sanitation efforts that span both removing pollution from water and keeping it out, keeping water clean – going to the broader meaning. The years between 1900 and 1935 are referred to as “the Sanitation Era”, and that clearly covers both removing pollution and keeping things clean.
Prof. Somin addresses what he considers the judge’s best argument, that if sanitation could be interpreted broadly, the other terms are unnecessary, by saying that there could be a broader meaning of sanitation that would still not quite get to using chemical agents to prevent or eliminate an infection. I would refer, again, to the installing systems of sanitation, too, to suggest that a narrow meaning of interpretation that does not cover keeping areas clean is in tension with existing sanitation projects at the time.
The judge argued that the narrow use of quarantine power until the COVID-19 pandemic supports a view that the powers in the act were narrow. But quarantine powers are not in §264(a); and although the judge is right that CDC’s power was always used to assist the states in applying their public health powers, there is no state that can order a mask mandate in the context in which the judge is litigating this, the context of interstate air travel, which is what the plaintiffs before her are complaining about. That power belongs to the federal government. And in fact, the language of the section expressly covers that interstate travel, and those powers are exactly designed to cover the ground that no state has the power to cover.
I have written exam questions about the mask mandates, addressing whether they tested CDC’s powers. But in those questions, I always used an in-state transit form. I think in a case brought around an in-state public transit system, there are real questions on whether CDC’s power covers the order – although the CDC makes a case based on the claim that:
…[i]ntrastate transmission of the virus has led to—and continues to lead to—interstate and international spread of the virus, particularly on public conveyances and in travel hubs, where passengers who may themselves be traveling only within their state or territory commonly interact with others traveling between states or territories or internationally…
Courts may end up not accepting that. But in the case the judge focused on, a case addressing interstate air travel, the CDC is on very, very firm ground in using this power, which no state has, and which the statute provides it. Again, the clear purpose for which the CDC has the power to act is 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.” In striking down the mandate, the judge has intentionally ignored and thrown out the mandate the legislature – a body that was democratically elected, whereas the judge was appointed, has life tenure, and is not democratically accountable – gave CDC to prevent transmission of disease between states.
The judge adds another argument. She concludes that §264(a) only addresses property, based on the fact that clauses (b)-(d) address quarantine, and therefore, she concludes, they are about personal liberty, and masks impose on personal liberty and fit that better.
I think describing the mask mandate as equivalent to detention is stretching the term detention substantially beyond its meaning, and I wonder if the judge will conclude the same about TSA safety inspections. Or the requirement of buying a ticket. There are a lot of conditions that accompany travel, and we simply do not treat them all as detention.
What About Chevron?
I hope it is clear, from the above, that I consider the judge’s conclusions about what is the best interpretation to be unconvincing. But there is still one more thing. As the government pointed out to the judge, even if the judge thinks her interpretation is better, Supreme Court precedent – Chevron – tells her that if there are two permissible interpretations, the agency gets to choose.
The judge tries to get around this in two ways. First, she argues that Chevron does not exempt her from “rigorous interpretation” – by which she appears to mean deciding what is the best interpretation. But that is exactly what Chevron does do. It tells her that if there are two valid interpretations, the agency can decide because the agency has the expertise that the judge does not, the agency is more accountable than a life-tenured judge, and Congress delegated this power to the agency, not the court. Those are the reasons the Supreme Court gave for deferring to agency interpretation when there are multiple valid ones.
The judge also says that the agency’s interpretation is not reasonable, apparently because she thinks her interpretation is better. But since the judge opened by making it clear that some dictionaries of the time used the broader interpretation, and went on to show that the interpretation was in contemporary use, there are good arguments that the agency’s interpretation is as reasonable – or more – like that of the judge, that’s unconvincing.
Finally, the judge reaches for the major questions doctrine, which is a new doctrine used by some judges to read into laws a condition that if the agency does something new and vast, and the courts get to decide what is new and vast in hindsight, congress has to have delegated the agency this power explicitly.
I think this doctrine is problematic on several grounds. And the judge’s application of the doctrine here is problematic even if we ignore its other issues. First, she has to argue that interpreting “sanitation” to allow a travel mask mandate will lead to the CDC imposing such other measures as an air-filtration mandate or a vaccine mandate. Especially the vaccine mandate claim is strange to read into allowing sanitation to be interpreted to allow a mask mandate. If the judge needs to go that far to conclude this is too broad, the argument is not very convincing.
The argument that the mask mandate is vast is also highly problematic because the judge hooks it the fact that the CDC defined the order as an “economically significant” action. This is a classification that is applied to regulatory actions that have to go through regulatory review.
Using it to claim that every significant regulatory action is “vast” for the major questions doctrine is, well, unprecedented. It’s a very strange expansion of the major questions doctrine. Each year thousands of “significant” actions go through regulatory review. If the judge is saying that every one the actions needs explicit Congressional approval, the judge is overturning decades of Congressional law that does not go into such detail and curtailing Congress’ ability to delegate power to agencies in an unprecedented way. That is quite a large step for a low-court judge.
In essence, the judge is using the major questions doctrine to read out of Congressional law a power clearly given to the CDC to act to prevent disease transmission between states. That’s problematic.
Did the CDC mask mandate fail the Procedural Requirements?
Normally, to create a rule an agency needs to publish a notice in the Federal Register, give an opportunity for comments, and then publish the final rule. The CDC mask mandate did not do that, and plaintiffs claimed the order should be struck down on these procedural grounds, too. The CDC raised two arguments to counter that. First, it argued that since this is an order and not a rule, it is not subject to the provisions that require notice and comment for rulemaking. Second, it argued that it can use one of the exceptions to the requirement, the good cause exception, which has traditionally applied in an emergency.
For the first, the court expressed contempt for CDC’s argument that this is not a rule and decided that the order fits better into the rubric of a rule. Although intuitively it may be appealing to see this as reasonable – to see something like the CDC mask mandate as a rule – it’s important to realize that this is a deviation from the usual operation of administrative law.
Traditionally, agencies have broad leeway to decide if they want to make policy through a rule or an order. (“If an agency has the authority to engage in both rulemaking and adjudication, it gets to determine which procedures it will use to make decisions.”)The Supreme Court in multiple cases allowed agencies to choose. For example, see NLRB v. Bell Aerospace, 1974; and NLRB v. Wyman-Gordon, 1969.
But not here. Judge Mizelle simply ignored existing precedent and decided, without providing serious analysis, that it can second guess the agency’s choice here. She suggested that the agency dropped the argument; it’s unclear what exactly happened, but if the judge told the agency it cannot proceed here in a way that isn’t rulemaking, that’s highly problematic under existing law.
For the good cause exception, the court also dismissed the agency’s exception-based, apparently, on the fact that it was short. And it’s true that on the good cause issue, the agency kept it short.
But the CDC opened the mask mandate order with a discussion of what led it to adopt the mask mandate, including the severity of the pandemic. The argument that a deadly pandemic does not justify doing away with notice and comment – a process that normally requires 30-60 days, during which people could die – is unpersuasive. If there is a time and place where there may be good cause to dispense with notice and comment, it is during a pandemic when thousands of people are dying each day.
The judge also added that notice and comment could have happened in the two weeks between the president’s call for a mask mandate and its imposition. But two weeks is a very short time to write out an order like this, and the agency cannot just write “we want to do a mask mandate, any ideas?”
For notice to be valid, it needs to fairly apprise interested parties of the content of the proposed decision, so they can participate. If agencies do not make it clear enough what they are planning to do, they may be sued on the grounds that their final decision was not a “logical outgrowth” of the notice. That means that the notice can’t just be general and undefined. So the agency would need to write something pretty detailed, and then provide time for comment – usually 30-60 days – while over a thousand people die every day. I am comfortable with the CDC choosing not to do that, given their conclusions that masks can reduce covid-19 infections (and therefore, the deaths and harms that result from them.
Judge Mizelle’s decision rested on a problematic legal interpretation, ignoring supreme court precedent about deferring to agency statutory interpretation, and a problematic procedural analysis that did not respect existing administrative law and undervalued the pandemic’s harms.
More broadly, if taken seriously, and in combination with other courts decisions, it drastically limits the CDC’s power to respond to public health emergencies, a power delegated by Congress in broad terms. It’s bad law and bad policy and should be overturned.
The justice department, after consulting with CDC, is appealing the decision. There is always a chance that a higher court will uphold the decision, but on its terms, it should not.