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A Breath of Fresh Air

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eye on the news

A Breath of Fresh Air

The federal court ruling against the CDC’s mask mandate for travelers is also a rebuke of rule-by-bureaucrats. April 19, 2022
Covid-19
Politics and law

In the latest of a long line of judicial rebukes to the Biden administration’s expansive view of administrative-agency power, a federal district court in Florida has vacated the CDC’s mask mandate for travelers. The court concluded that the CDC had exceeded its statutory authority, violated the notice and comment procedures required for rulemaking under the Administrative Procedures Act (APA), and acted in an arbitrary and capricious manner.

The ruling comes one week after the CDC had, once again, extended the mandate, this time until May 3. The mask mandate was one of the first actions taken by the new Biden administration. One day after his inauguration, President Biden issued Executive Order No. 13998, directing executive-branch agency heads to require “masks to be worn in compliance with CDC guidelines in or on” airplanes, airports, trains, intercity buses, boats, and on other forms of public transportation.

Two weeks later, the CDC published the “Requirement for Persons To Wear Masks While on Conveyances and at Transportation Hubs.” The order stated that mask wearing is “one of the most effective strategies available for reducing COVID-19 transmission” and required masks when traveling on any type of conveyance into or within the United States and at transportation hubs.

The CDC claimed that it was relying on Section 264(a) of the Public Health Service Act, which empowers it to issue regulations “to prevent the introduction, transmission, or spread of communicable diseases from foreign countries,” and from state to state. Last year, the agency claimed the same section gave it authority to issue a nationwide eviction moratorium. The Supreme Court struck down the moratorium on the grounds that the CDC had exceeded its statutory authority, since the statute narrows the types of measures it can implement to limit the spread of disease to fumigation, disinfection, sanitation, and pest extermination.

The Florida district court followed the same reasoning to conclude that Section 264(a) also does not authorize the CDC to issue a mask mandate. As in the Supreme Court’s eviction-moratorium ruling, the district court invoked the “major questions doctrine,” which requires “Congress to speak clearly” in the statutory language if it intends to authorize an administrative agency to make decisions “of vast economic and political significance.” The CDC claimed that Section 264(a)’s reference to providing for “sanitation” or “other measures” gives it broad, indeed almost unlimited, powers to take measures applying to both sick and healthy people that would limit the spread of disease and preserve public health. But the statutory language does not do that.

Section 264(a) actually refers to actions (fumigation, disinfection, sanitation) taken on “animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings”—not to taking those same actions on human beings. While the CDC claimed the mandate was a “sanitation” measure allowed by the statute, the court held that the mandate has nothing to do with sanitation as it is commonly understood—cleaning or sanitizing.

Unlike restrictions in other sections of the statute, which apply to people who are travelling into the country from abroad or between states and are found “upon examination” to be infected or are “reasonably believed to be infected,” the mandate applies to all travelers, regardless of their origins and destinations, and makes no attempt to distinguish between those who are infected and those who are not.

The Florida court also found that the CDC had violated the APA by improperly invoking the Good Cause Exception to circumvent normal notice-and-comment rulemaking. The exception applies when an agency finds that normal notice and a 30-day comment period allowing public participation in rulemaking would be “impracticable, unnecessary, or contrary to the public interest.” The CDC claimed that, because of the ongoing public-health emergency, it would be impracticable and contrary to public health to delay issuing the mandate.

The court held that this single conclusory statement was inadequate to document the good cause needed for the exception to normal rulemaking. The ruling noted that, in other instances of agencies invoking the good cause exception for both health- and non-health-related rules, the agencies provided detailed, careful, and lengthy explanations of their reasoning. Moreover, claims of urgency didn’t hold up: the CDC issued the mandate a year after the public-health emergency had been declared and at a time when Covid-19 cases were declining.

Finally, the court set aside the mandate as “arbitrary and capricious” because the CDC failed adequately to explain its reasoning. Agencies must engage in “reasoned decisionmaking” that examines the relevant data and articulates a satisfactory explanation for their actions. But the CDC made little or no effort to explain why masking was needed for travel and not other situations, or why certain exceptions were allowed and not others. The court was not questioning the CDC’s ability to make scientific decisions or the soundness of those decisions, but rather its complete failure to explain why it made the decisions that it did.

The mask mandate has been questionable from the start. As the court noted, it made no attempt to distinguish between cloth masks, which are widely acknowledged to be useless, and medical-grade masks. The CDC never explained why a half-hour bus trip was more dangerous than a two-hour meal at a restaurant.

The mandate applied to children as young as two, leading to multiple episodes in which families were expelled from public transport when their toddlers would not keep masks on. Unlike the CDC, the European Centre for Disease Prevention and Control recognized that “children (<12 years) may have a lower tolerance to wearing masks for extended periods of time, and may fail to wear them properly.” The World Health Organization specifically advises against masking kids age five and younger. Most countries follow this advice.

Requiring masks on airplanes was particularly problematic. Airplanes are the safest non-medical indoor environments around. Half of the cabin air is fresh air from outside, and the other half is passed through High-Efficiency Particulate Air (HEPA) filters that are more than 99.9 percent effective at removing viruses. It is refreshed 20 to 30 times an hour (many more times than other indoor settings), and airborne spread is inhibited since the air flows from top to bottom, not along the length of the aircraft. Tests show that airplane passengers seated side by side have less potential exposure than people who keep six feet apart in other environments.

The federal mask mandate increasingly seemed like an anachronism. State and local governments and businesses around the country have dropped indoor mask mandates in response to plunging Covid case, hospitalization, and death rates. At best, the CDC came across as overcautious; at worst, it seemed like a sclerotic bureaucracy clinging to its power to dictate peoples’ daily lives.

A lasting benefit of the pandemic appears to be public realization that government bureaucratic experts do not always know what is best and an increased judicial willingness to rein in administrative agencies’ expansive view of their regulatory powers. The mask-mandate ruling, along with the earlier Supreme Court eviction-moratorium ruling, limits the CDC’s broad claims of authority under the Public Health Service Act.

In January, the Supreme Court stayed enforcement of OSHA’s claimed authority under the Occupational Safety and Health Act to issue a vaccine mandate for private employers. The court found that the law did not authorize a vaccine mandate. As in the CDC cases, the ruling invoked the major questions doctrine: Congress had to “speak clearly” in the statutory language if it intended to authorize an action as significant as a nationwide vaccine mandate that would affect tens of millions of workers. It had failed to do so.

As the pandemic recedes, one hopes that courts and the public will continue to insist that our elected representatives in Congress take seriously their constitutional duty to make the rules we must live by, rather than turning major decisions over to unelected bureaucrats.

Photo by PATRICK T. FALLON/AFP via Getty Images

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