The Mask Wars: Judge Mizelle Takes On the CDC

On April 21, a federal judge in Florida, Kathryn Kimball Mizelle, struck down an order by the Centers for Disease Control that mandated the wearing of masks on all modes of public transportation. This ruling drew immediate criticism from numerous public health experts and legal authorities, who expressed dismay at a questionable but crippling blow to the CDC’s authority. These concerns were heightened by the fact that the continuing battle against the Covid pandemic is not only far from over but, indeed, appears to be surging. (The New York Times Coronavirus Tracker on April 23 showed that for the last 14 days new cases were up 52 %; deaths were down 33%, and hospitalizations were up 1%, but these are lagging indicators.)

Discussion of the Mizelle ruling also prompted considerable discussion of the judge’s lack of professional qualifications (which had led the American Bar Association to find her unqualified at the time of her appointment in the waning days of the Trump administration). Yet there was relatively little explanation or analysis of Judge Mizelle’s reasoning in support of her ruling. That gap has now been ably filled by an essay from Professor Michael C. Dorf in Verdict, “Textualism Masks Ideological Opposition to the Administrative State.”

There were essentially two pillars to Judge Mizelle’s opinion. The first was her interpretation of the CDC’s authority under the relevant statute and her refusal to give the deference ordinarily shown to an agency’s interpretation. The second was her view that the CDC had failed to explain its order adequately. Both pillars appear to be quite shaky, but the prospects of the CDC on appeal are not encouraging. As Professor Dorf concluded, the foundation of the Mizelle opinion was ideological and the ideology is one likely shared by the Republican appointees who form the majority in both the 11^th Circuit Court of Appeals and the Supreme Court.

The CDC’s Statutory Authority: What Is “Sanitation”?

The legality of the CDC’s order in this case is governed by 42 U.S.C. 264 (a), which authorizes the agency head as follows:

…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 [agency head] 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.

In a tortured parsing of the statute, Judge Mizelle rejected the position of the CDC that its mask mandate was authorized as a sanitation measure. She conceded that a mask requirement fell within an accepted definition of sanitation, i.e. measures “that keep something clean.” Nevertheless, she argued that Congress had in mind an alternative definition, “to clean something”—a function that masks do not serve. The latter definition, the judge claimed, was more consistent with other specified measures, such as fumigation, that would fall within the first alternative.

Judge Mizelle declined to consider the common sense possibility that Congress intended to provide for both types of sanitation—or, to put it another way, why on earth it would have chosen to exclude either one. Nevertheless, Mizelle was so confident of her linguistic analysis as to insist that there was not so much as an ambiguity in the statute—a circumstance that would have required her to defer to the agency’s interpretation. All in all, the aroma of pettifogging in service of ideology is unmistakable.

Adequacy of the CDC’s Administrative Record

In addition to her venture into statutory interpretation, Judge Mizelle spent approximately one half of her 59 page opinion faulting the CDC’s administrative procedures in adopting the mask mandate. She ruled that the agency had not adequately explained either the “good cause” for invoking an exception to the requirement of notice and comment, or the need for the rule itself.

While the CDC could, and arguably should, have made a somewhat more elaborate record, the essential bases for its actions are stunningly obvious. As for good cause to avoid the delay of notice and comment, Professor Dorf pointed out:

The numbers speak for themselves. In the two weeks after the CDC order went into effect on February 1, 2021, roughly 30,000 Americans died of COVID-19. If the mandate reduced mortality by only one percent, that means that avoiding just a two-week delay saved the lives of over 300 Americans. If preventing those avoidable deaths (not to mention the serious long-term consequences for many people who survive COVID-19 infections) does not amount to good cause, it is difficult to understand what would satisfy Judge Mizelle.

Similarly, as to the need for the mandate itself, Dorf observed:

[Judge Mizelle] thought the agency did not explain why it was requiring masks and not other measures, such as social distancing and frequent handwashing—which are of course impossible on an airplane or bus. And of course, Republican ideologues would have challenged any and all such other measures, as they did with respect to vaccine mandates.

Prospects for an Appeal

Notably, the government did not seek a stay of Judge Mizelle’s ruling and the mandate, which had been extended to May 3, has now been revoked—to the delight of some passengers but the dismay of others. Nevertheless. after a brief delay, and consultation between CDC and the Department of Justice, it was announced that an appeal would be pursued. The reasons for this tactical approach are not clear, but an article in Friday’s New York Times offered one plausible hypothesis.

According to the Times article, the Biden White House has diminished enthusiasm for the wearing of masks, but is concerned about protecting the CDC’s authority. That may have led to a strategy outlined by Professor Stephen Vladeck:

He pointed to an obscure legal doctrine under which if a case is on appeal when the dispute becomes moot for reasons unrelated to the litigation, an appeals court can remand it to the district court with instructions not only to dismiss the case but to vacate the district court’s ruling — meaning wipe it from the books.

In this case, the mootness would arise from the stated expiration of the challenged mandate on May 3. That tactic, however, has its limitations. Even if Judge Mizelle’s ruling is extinguished, the influence of her opinion is apt to linger on, if not as a formal precedent, then as an inspiration and road map for future attacks on a mask mandate or other order. “Sanitation” may never be the same for the CDC unless and until its full meaning is restored by some future court.

At the same time, the reluctance of the Biden administration to put this case in the hands of the Republican-appointed majorities on 11^th Circuit and the Supreme Court is not difficult to understand. Republican judicial appointees, particularly in recent years, often have shown an attitude toward agencies (“the administrative state”) that appears to range between suspicion and hostility. And, in the case of masks in particular, Republican judges may well reflect the attitude of Republicans at large. A recent AP poll showed that while a majority of Americans favored a mask mandate for public transportation, 45 percent of Republicans are opposed compared with 33 percent in favor, and 22 percent saying neither.

With the disappearance of the mask mandate, readers who must use public transportation are urged to wear a mask for their own protection and to select one of the most effective models, the N95 or KN95. Happy trails.