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  • Robert Lusk

Judge to CDC: You Can’t Make Us Wear Masks on Airplanes!



The mask wars continue. Most recently, in Health Freedom Defense Fund, Inc. v. Biden, Case No. 21-cv-1693 (April 18, 2022), Judge Kathryn Mizelle, of the United States District Court for the Middle District of Florida, struck down the mask mandate promulgated by the Centers for Disease Control and Prevention (CDC) for inter-state travel. Contemporaneous news outlets reported that, as pilots made the mid-flight announcement, some passengers cheerfully ripped-off their masks as others looked on aghast. The Department of Justice (DOJ) filed its appeal days later.


The Court’s opinion is 59-pages long. A detailed description would likely bore if not mystify all but the wonkiest readers. However, it is significant to note the Court did not focus on whether masks were a good or bad idea. In fact, the Court noted masks probably did more good than harm. Nor did the Court conclude that every masking directive was illegal. To the contrary, the Court noted that state and local governments had wide discretion to regulate issues affecting public health. Rather, the Court's focus was whether a particular agency of the federal government – the CDC – had statutory authority promulgate a mask mandate for those engaged in inter-state travel.


The Court’s analysis began with the text of the federal statute granting CDC the authority to issue regulations, which provided:


The [CDC] ... is authorized to make and enforce such regulations as in [its] 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 Statute or possession. For purposes of carrying out and enforcing such regulations, the [CDC] 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 [its] judgment may be necessary.


The Court, relying on certain rules of statutory construction, interpreted the second sentence of the statute to limit the generality of the first sentence and the “other measures” phrase of the second sentence as referring to measures similar to those explicitly identified in the same sentence. Accordingly, since requiring travelers to wear masks was not “inspection, fumigation, disinfection, pest extermination, or destruction of animals or articles,” the question, from the Court’s perspective, was whether the mask mandate was a form of “sanitation.” The Court, analyzing dictionary definitions and the use of the word sanitation when the statute was enacted (i.e., between 1930 and 1944) concluded requiring people to wear masks did not fall within the common understanding of the word sanitation. Furthermore, as the statute was not ambiguous, there was no need to defer to the CDC’s interpretation of the statute under the rule announced by the Supreme Court in its 1984 Chevron decision. Beyond this, the Court held the CDC had not followed the publication and public comment requirements of the Administrative Procedures Act (APA).


This decision may be best understood in light of the judiciary’s growing skepticism of regulations issued by politically unaccountable administrative agencies. Those with conservative judicial leanings are increasingly less inclined to allow administrative agencies to issue binding regulations that are not clearly authorized in legislation enacted by elected and, therefore, politically accountable legislators Given the DOJ’s appeal, the next stop will be the Court of Appeals for the Eleventh Circuit.