Government Judge: Biden Airplane Mask Mandate Illegal

President Joe Biden’s “Mask Mandate” on federal airplanes is illegal, a federal judge ruled on Monday in a setback to Biden’s COVID-19 agenda.

One day after taking office, Biden issued Executive Order (EO) 13998, ordering the Centers for Disease Control and Prevention (CDC) to develop the Mask Mandate, and for various other federal agencies like the Federal Aviation Administration (FAA) and Transportation Security Administration (TSA) to implement the CDC’s decisions. EO 13998 also covered airports and other public transportation, such as buses.

CDC issued its initial order on January 29, 2021, pursuant to Biden’s EO. Among other things, it requires almost everyone ages two and up to wear masks in airports and on airplanes, with certain narrow exceptions such as between bites when they are eating.

Various legal challenges have been filed against the mandate. (Full disclosure: The author of this article is also one of the lawyers on one such lawsuit, FRC Action v. Biden, which Breitbart News reporter Katherine Hamilton has covered.) Most recently, almost two dozen states filed a lawsuit raising several statutory and constitutional objections to the Mask Mandate.

Monday’s ruling was on one of the earliest cases, filed in July 2021. The lawsuit alleged that the Mask Mandate violated the Administrative Procedure Act (APA) on three separate grounds: First, that issuing the order is beyond CDC’s statutory authority granted by Congress in 42 U.S.C. § 264a. Second, that the CDC’s action was really a rule (i.e., a regulation) rather than an order, and therefore had to go through a process of public notice and opportunity for public comment before taking effect. And third, that it violates the APA because it is “arbitrary and capricious,” meaning that it was not the result of reasoned decisionmaking.

“The government purports to discover this unheralded power to regulate how individuals appear and behave in public in a long-extant statute—one over seventy years old,” Judge Kathryn Mizelle wrote. “This history suggests that the power the government sees in § 264(a) is a mirage.”

“The only reason the Mandate cites is the public health emergency caused by COVID-19,” Mizelle continued in her 59-page opinion, rejecting the Biden administration’s argument that the Mask Mandate could be imposed by an agency order. Instead, she decided that CDC’s restriction was a regulation that had to go through months of public comments, because “good cause to suspend notice and comment must be supported by more than the bare need for the regulations.”

Mizelle also held that the CDC did not account for various objections, issues, and evidence opposing the Mask Mandate. This made the Mandate arbitrary and capricious, because “irrespective of whether the CDC made a good or accurate decision, it needed to explain why it acted as it did,” she said.

“Because our system does not permit agencies to act unlawfully even in pursuit of desirable ends, the Court declares unlawful and vacates the Mask Mandate,” Mizelle concluded.

“What a breath of fresh air! I am grateful for Judge Mizelle striking down this authoritarian mandate,” Family Research Council President Tony Perkins told Breitbart News is an exclusive reaction to Monday’s ruling. “It is becoming clear that the COVID mandates are masking the desire by some in government for more control over the lives of American citizens.”

The Department of Justice may seek an emergency stay at the U.S. Court of Appeals for the Eleventh Circuit to block Mizelle’s order and keep the mandate in place.

The case is Health Freedom Defense Fund v. Biden, No. 8:21-cv-1693-KKM in U.S. District Court for the Middle District of Florida.

Ken Klukowski is an attorney and a Breitbart News contributor. He formerly served in the Trump White House and the U.S. Department of Justice.

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