Trump-Appointed Judge Finds That CDC Lacks Power To…Control Spread Of Disease

A Trump-appointed district court judge found Monday that in issuing its mask mandate for travel on public transportation, the Centers for Disease Control (CDC) overstepped its authority. 

A spokesperson for the Department of Justice told TPM that they are still “reviewing the decision” and declined to answer whether they intend to appeal it.

The mask mandate will not be enforced while the agencies are figuring out next steps, per an administration official.

“In the meantime, today’s court decision means CDC’s public transportation masking order is not in effect at this time,” the official said. “Therefore, TSA will not enforce its Security Directives and Emergency Amendment requiring mask use on public transportation and transportation hubs at this time.”

In her order, District Judge Kathryn Kimball Mizelle goes to great lengths in search of rationale to explain how the agency in charge of stifling disease spread could have been out of bounds in issuing a mandate to reduce the transmission of COVID-19 in crowded hotspots like airports and trains.

She dedicates pages of writing to the definition of the word “sanitation,” about which the CDC is empowered by law to promulgate regulations. While acknowledging that a definition of the word entails preserving something’s cleanliness, she rejects the agency’s interpretation.

“Wearing a mask cleans nothing,” Mizelle writes. “At most, it traps virus droplets. But it neither ‘sanitizes’ the person wearing the mask nor ‘sanitizes’ the conveyance.”

She later sprinkles in some vaccination fear-mongering for good measure. 

“If Congress intended this definition, the power bestowed on the CDC would be breathtaking,” she writes, adding: “So too, a power to improve ‘sanitation’ would easily extend to requiring vaccinations against COVID-19, the seasonal flu, or other diseases.”

After stashing her dictionaries, she wades into a wider pool of anti-agency rhetoric to bolster her argument that the CDC is not empowered to issue regulations to achieve the task spelled out in its name. 

With a combination of flat dismissal and major questions doctrine invocation, Mizelle bats aside the government’s argument that the CDC should be given a degree of deference in regards to regulations it issues to control disease spread.

“A court may not rest on Chevron to avoid rigorous statutory analysis,” she writes of the government’s request for deference, adding that the mask mandate constitutes a “major question,” requiring the explicit transferral of power from Congress to the agency in order to allow the action. 

Mizelle was confirmed in November 2020, part of an all-out push by the GOP-controlled Senate in the final, lame-duck days of the Trump administration. She was assigned a “not qualified” rating by the American Bar Association when she was nominated due to her inexperience.

Dozens of pages into the decision, Mizelle still has yet another sticky wicket to circumnavigate before handing down the order blocking the mask mandate nationwide. The Supreme Court, as heavily conservative as it is, just allowed the Centers for Medicare & Medicaid Services (CMS) to mandate the COVID-19 vaccine for health care workers employed at facilities that participate in Medicare and Medicaid. Chief Justice John Roberts and Justice Brett Kavanaugh joined the liberals in upholding the mandate, which includes religious and medical exemptions. 

So, Mizelle seeks to differentiate the appropriateness of that order from the CDC’s, primarily based on the length of their explanations. 

CMS, she notes, included “four pages of reasoning (with forty footnotes of supporting sources) on why there was good cause to forego notice and comment.”

The CDC’s shorter explanation, she finds, is inadequate to explain why the agency issued an emergency action, skipping over the customary rulemaking period that includes time for public comment. 

The agency wrote at the time that: “Considering the public health emergency caused by COVID-19, it would be impracticable and contrary to the public’s health, and by extension the public’s interest, to delay the issuance and effective date of this order.” 

But the CDC’s reasoning falls short with Mizelle.

“Besides its brief reference to the pandemic, the Mandate makes no effort to explain its reasoning that there was an exceptional circumstance at the time it implemented the rule,” she writes. 

At the very least, the government requested that if the court bought the plaintiffs’ arguments, it not go further than a declaratory judgment and non-enforcement of the mandate applying to the individuals who filed the suit. Both are frequent fliers who say that wearing masks exacerbates their anxiety disorders.

But Mizelle opted for a nationwide injunction of the mandate instead. 

“While the Court recognizes the criticism about nationwide injunctive relief and admittedly shares some of the skepticism about it … the weight of authority and judicial practice instructs that vacatur is an appropriate remedy for an APA violation,” she writes. 

While the fate of the mask mandate is still undetermined, Mizelle’s decision is another data point in the right wing legal world’s attempts to severely curtail agency power. Experts balked at a recent Supreme Court decision where the conservatives kept the Occupational Safety and Health Administration (OSHA) from mandating COVID-19 vaccines or weekly testing for workers of large employers. 

The CDC instituting mask mandates to stop COVID-19’s spread is even more clearly within its parameters of authority, but Mizelle still characterized it as a power grab by an undemocratic institution. 

Read the order here: