Phillip Holloway: The CDC’s Mask Mandate Is Dead and Won’t Be Back; Here’s Why

Seth Connell also assisted in this column. He is a third-year law student at Regent University School of Law.

Federal Judge Kathryn Mizelle did what a federal judge is supposed to do—she reined in the CDC when it went too far. She struck down the mask mandate for mass transit. Most travelers rejoiced and said goodbye to masks, perhaps for good.

But not everyone was happy. The ruling sent COVID doomsdayers into panic mode. There was a flurry of claims that Mizelle made an improper decision because TheScience™ is not for the courts – or so they say. Doctor “TheScience™”  Anthony Fauci himself was quick to condemn the ruling while exposing his legal ignorance at the same time.

“We are concerned…about courts getting involved in things that are unequivocally public health decisions…This is a CDC issue. It should not have been a court issue.”

Fauci is wrong. He exposed his ignorance of how American government works. This was not a ruling based on science. Judge Mizelle did not issue a public health order – she issued a legal order. And as much as Fauci may dislike it, Mizelle got it exactly right!

Fauci and TheExperts™ will not want to hear that her ruling is ironclad and will hold on appeal.

Public health policies made by government agencies are not merely scientific actions. They’re government actions. Government actions are subject to review by courts when they violate federal law. 

Federal agencies are creatures of statute and are bound by law to operate within the law imposed by Congress. Agencies are not separate entities that may act as they wish. Their authority is limited to what Congress grants them. So the CDC is governed by Congress – not by any President – and certainly not by career bureaucrats like Fauci.

Judge Mizelle made that expressly clear in her ruling. Specifically, she addressed how the CDC and government officials violated the Administrative Procedures Act (APA) in issuing this mandate. 

The issue was not whether masks work to prevent the spread of Covid-19. Nor is the issue whether it is wise policy to order millions of traveling Americans to strap a piece of cloth over their breathing and talking holes (except when chomping Biscoff cookies or chugging chardonnay.) The real issue was whether the CDC had legal authority to issue such an edict in the first place – and if so, did it issue the rule as prescribed by law. The answer to both questions is: no.

The APA requires a court to set aside agency actions when they are beyond the agency’s authority. When reviewing agency actions such as the CDC’s mask mandate (or its eviction moratorium), the question is a matter of law. That squarely places the issue within the scope of the courts’ review.

The law the CDC used to attempt to justify the mask mandate comes from the Public Health Services Act of 1944. The specific section at issue gives the CDC the power to require “inspection, fumigation, disinfection, sanitation, pest extermination, destruction, and other measures.” The CDC claimed the word “sanitation” gave it authority to issue the mask mandate. 

Judge Mizelle made quick work dispensing with the merits of that claim. When there is no definition given for a word, courts apply the plain meaning of that word. Because the statute does not define “sanitation” – she used the dictionary definition. 

Webster’s defines sanitation as “measures that clean something or that remove filth, such as trash collection…” Funk and Wagnalls defines sanitation as “the removal or neutralization of elements injurious to health.”

The idea is that sanitation measures must involve the removal of infectious diseases or the conditions that enable spread. But a mask mandate is not a sanitation measure within these definitions. It’s important to understand that the mask mandate applied to ALL travelers – even travelers who are well and require no “sanitization.”

In addition to dictionary definitions, words have meaning based on context. This is one of the canons of statutory interpretation that courts commonly use. Thus, a word is known by the company which it keeps. 

The other measures listed in the statute do not resemble the power to order people to wear masks. The authority is simply absent. Not even the phrase “other measures” enables the CDC to issue this mandate. 

The words that come before the phrase “other measures” operate as a boundary around that phrase, making the scope of other measures such that they must resemble what has already been described. There is no authority to do acts that are far removed from the listed powers that the statute grants.

“Wearing a mask cleans nothing,” the ruling states. “At most, it traps virus droplets. But it neither ‘sanitizes’ the person wearing the mask nor ‘sanitizes’ the conveyance.’” In other words, masks do not sanitize the wearer nor do they sanitize the airplane, bus, train etc. In fact, masks appear to be as unsanitary as used toilet paper laying around on the ground.

Sanitation is limited to cleaning, and Mizelle made that abundantly clear as a matter of law. The ruling does not state whether masks inhibit the spread of COVID. That is another question entirely. One day we can have the facemask version of the “Scopes Monkey Trial” to decide whether masks work or if they are junk science forced on the public as a feel-good measure by Fauci and TheExperts™ in a straw-grasping effort to “do something” out of desperation.

Mizelle also clarified that sanitation measures are limited to property and are not to be used on humans as if they are dirty newspaper used to line bird cages. The statute does not give authority to act on individuals directly, as noted in the ruling. Congress never intended the CDC to have such powers, and the words of the law cited by the CDC clearly indicate as such. 

The bottom line: Mizelle’s ruling is solid. Her statutory construction was precise and thorough. Given the Supreme Court’s ruling in Alabama Association of Realtors v. Dept. of Health and Human Services in 2021, the legal framework strongly suggests that the ruling will stand.

The DOJ has filed a notice of appeal but did not seek a stay of Judge Mizelle’s ruling. The appeal will go to the 11th Circuit Court of Appeals. This court is considered to be conservative with a number of judges appointed by President Trump. The 11th Circuit would not likely buy any argument that an emergency stay is warranted. First, the CDC order was set to expire on May 3 and the stated reason it was recently extended was simply for the CDC to gather more data on the so-called “Omicron sub-variant.” It’s difficult to see this as an emergency that would justify the continued forced masking of travelers.

This appeal is likely a loser for the Biden Administration. Mizelle wrote a solid order. She made findings that the CDC action was “arbitrary and capricious.” She correctly pointed out the CDC failed to justify skipping the otherwise-mandatory public notice and comment period as required by the APA. It’s not enough that an agency explains skipping the notice and comment process just because the agency thinks it needs to be skipped. This is the epitome of hubris and government overreach that the APA was specifically meant to prevent.

The CDC’s mask mandate is effectively over. It’s time the agency and the forever-Covidians accept this. The CDC doesn’t have authority to do this and it never did. On appeal to the 11th Circuit, they will be disappointed and the rule of law will prevail.

It’s time to move the CDC back to an honest public health agency devoted to real science and to remove it as a public relations arm of the White House.

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