In a recent court case, US District Judge Kathryn Kimball Mizelle struck down the CDC's mask requirement that went into effect on February 3, 2021; concluding that the CDC exceeded its statutory authority and violated APA procedures required for agency rulemaking. There are mixed feelings about this decision, but the decision does not remove the right to wear a mask. There are plenty of comments on news shows, internet forums, Reddit, etc where people say the logic surrounding the decision is flawed or outright wrong because the Judge tossed out one of the definitions of a word arbitrarily. The Judge's reasoning for vacating 86 Fed. Reg. 8025 (Feb 3, 2021) and remanding it to the CDC are below.
The CDC published the Mask Mandate without public participation as required by the APA procedures and the Mandate also claimed it wasn't a rule under the APA. In her judgment, she did not accept the CDC's defense that public participation would've created too much of a burden. Why would the CDC argue it would be too much of a burden if they also claimed that it wouldn't need public participation because it wasn't a rule?
The CDC relied on the Public Health Services Act of 1944 (PHSA) to empower its Mask Mandate through § 264(b)-(d), whereby courts have already vacated decisions regarding the CDC's decision to shut down the cruise industry and prohibit landlords from evicting tenants for not paying rent. The remaining Mask Mandate was still in effect using § 264 for legal standing and authority to enforce such a federal mandate. As with the other two, the third use is likely to exceed CDC's authority to publish and enforce the Mask Mandate.
§ 264(a) of PHSA does not authorize the CDC to issue a Mask Mandate because the text suggests methods of preventing communicable diseases by active cleaning or preserving cleanliness. Masks “neither sanitize the person wearing a mask nor sanitizes the conveyance”. The text suggests methods of “identifying, isolating, and destroying the disease itself”.
Finally, § 264(a) extends to property whereas § 264(b)-(d) extends to personal liberty. It empowers authorities to detain and quarantine individuals who are traveling interstate or coming from a foreign country who are “reasonably believed to be infected with a communicable disease in a qualifying stage” and found upon examination to be infected. The Mask Mandate would then be considered the “conditional release” as it allows freedom of use of conveyances as well as freedom of movement of the individual. The Mask Mandate would violate both (c) and (d).
It surprises me when news pundits or people on the internet boil down a decision to one thing. There were many issues with the Mask Mandate that violated the law or exceeded its statutory authority. It is not simply that the Judge arbitrarily chose a definition to suit her decision, or that she spun her decision to match political ideologies.
