On Monday, a U.S. District judge in Florida ruled the federal face mask mandate for travelers using public transportation was unlawful. The U.S. Dept. of Justice is appealing the ruling. But at this stage of the pandemic, reinstating it is less about preventing transmission of COVID-19 than preserving the authority of the Centers for Disease Control and Prevention to act during future public health crises.
This ruling had nothing to do with the highly publicized lawsuit seeking to end the mandate that was filed last month by the governors of 21 states, including Alaska. It was in response to one filed in late July by the Health Freedom Defense Fund and two individuals.
The governors’ action followed a March decision by the Biden administration to extend the mandate until April 18. Soon afterward, the CDC determined it needed to more time to assess the omicron subvariant BA.2—the dominate strain that was on the rise in the U.S. The mandate was extended again, this time until May 3. The decision by Judge Kathryn Kimball Mizelle in the Health Freedom Defense case put an end to that.
Mizelle ruled the CDC exceeded their statutory authority, did not follow the proper rulemaking process, and its “arbitrary and capricious” decisions violated the Administrative Procedure Act. The effect was it wrongly curtailed a traveler’s freedom of movement because non-compliance resulted in being “detained or partially quarantined by exclusion from a conveyance or transportation hub.”
That’s what happens to anyone who refuses to comply with TSA security screening rules. The difference is, as required by the APA, those were first subject to public comment and their final decisions were adequately explained.
“Ignoring the standard established under the Administrative Procedure Act is not only illegal but deeply concerning,” Attorney General Treg Taylor stated when Alaska joined the states’ lawsuit. “The CDC’s pattern of behavior continues to undermine the separation of powers doctrine embedded in our Constitution and Americans right to participate in the regulatory process through notice and comment.”
Taylor wasn’t the attorney general when Donald Trump was in the White House. But he should know his administration violated the APA numerous times. It wasn’t the first to be sued for doing so. But unlike their predecessors who prevailed in 70% of their court challenges, team Trump lost nine of 10 cases.
The APA, enacted in 1946, was intended ensure uniform standards for rulemaking by all federal agencies and allow for public participation. However, that long, drawn-out process isn’t suited for dealing with an emergency health crisis like COVID-19.
Mask mandates didn’t originate with the CDC though. During the first month of the pandemic, its position was wearing them wasn’t necessary. In early April 2020, they switched to recommending everyone wear one in public places.
Then in May, all major airlines began requiring their passengers to wear them during check-in, boarding, in-flight and while exiting the aircraft. The state would eventually require masks be worn on Alaska Marine Highway sailings. And local officials in Juneau and Anchorage made that decision for their respective public transportation systems.
But by the summer of 2020, mask requirements imposed by businesses, state or local governments had already become highly politicized. That never changed.
Neither did the CDC’s position that masks were effective at reducing transmission of the disease. But as Philip Bump explained this week in the Washington Post, “masking has never been a works-or-doesn’t proposition. Instead, the choice is between a reduce-risk-or-don’t, and masks do reduce risk.”
The hard to ignore fact is when the Biden Administration issued the traveler mask mandate in January 2021, COVID-19 did pose a significant risk to all Americans.
And even Mizelle acknowledged the benefit “that requiring masks will limit COVID-19 transmission and will thus decrease the serious illness and death COVID-19 occasions.” The problem for her wasn’t the CDC’s scientific basis for their decision. She found they failed as bureaucrats.
Fortunately, the situation isn’t nearly as dire it was when Biden took office. Vaccination is now the best protection that’s readily available for almost everyone. But if Mizelle’s ruling is allowed to stand, the next presidential administration to face a major health crisis will be handcuffed by the kind bureaucratic processes that the Republican governors suing Biden really hate.