Judge reverses COVID-19 TSA Mask Mandate in a Harsh Rebuke of CDC Powers

By Ronald W. Chapman II

The CDC COVID-19 Federal Mask Mandate has Been Repealed

The COVID-19 pandemic ushered in a wave of government powers generally acquiesced to by the public for the purposes of reversing the largest public health emergency of our time. Those powers have come to a swift end by the pen of Judge Kathryn Kimball Mizelle of the United States District Court for the Middle District of Florida. Judge Mizelle’s issue? The Government didn’t follow its own rules in pushing the CDC Mask Mandate through its regulatory powers. Under federal law, when an agency wishes to issue a rule, it must follow the Administrative Procedures Act – an act which regulates how the myriad of government agencies get to control the way we live. And the requirements aren’t strict. Instead of passing a bill through congress and achieving a signature by the president, Federal Agencies need only to publish the proposed rule and allow a sufficient period for public comment. Somewhere in the rush to cover our faces, the CDC missed this vital step and exceeded its statutory authority.

The CDC Exceeded its Authority and Failed to Follow Federal Law

As a basis for dispensing with notice and comment requirements, the CDC found that “it would be impracticable and contrary to public health” to follow the APA’s requirements. Interestingly, while the CDC mask regulation was pushed through under pretext of protecting public health, Judge Mizelle noted that the regulation did not differentiate between the type of mask an individual is required to wear. The regulation only requires “a piece of material without slits”.

The APA requires a federal court to “hold unlawful and set aside agency action” that is “arbitrary” or “capricious” or created “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right”. Plaintiff’s in this case argued that the CDC Mask Mandate is arbitrary, capricious, and adopted without observance to APA’s rulemaking procedures. And they made a pretty easy case of it by filing a complaint in Federal District Court and seeking summary judgment – a procedure that allows a Court to grant relief before the case gets to a jury.

In a 59 page ruling, Judge Mizelle declared that the mask mandate was an arbitrary exercise of agency power and struck down the mask mandate.

The PHSA Does Not Provide the CDC Such Broad Sweeping Authority

The basis of the mask mandate is found in a federal law – the PHSA- that was generally limited to quarantining infected individuals and prohibiting the import or sale of animals known to transmit disease. This law was rarely invoked – until recently. In the wake of the COVID-19 pandemic the CDC used its regulatory authority under the law to effectively shut the cruise ship industry down, prevent landlords from evicting tenants, and require people on public transportation and in airports to wear a mask – even if vaccinated and recently tested. But Judge Mizelle believes that this stretches the law too far and that the CDC exceeded its authority by acting so broadly. In order to invoke the law, the CDC must be acting for the purposes of inspection, fumigation, disinfection, destruction, or pest extermination. Requiring a mask for non-infected individuals is not found in the text of the statue.

The CDC argued to Judge Mizelle that the mask mandate is for the purposes of “sanitation” – but it has no authority under the PHSA to create a regulation for general “sanitation” purposes. And, like in many federal judicial decisions, the analysis comes down to good old-fashioned Webster’s dictionary – which defines sanitation as “the promotion of hygiene and prevention of disease by maintenance of sanitary conditions”. The only problem for the CDC, Congress never gave it such broad authority to “promote sanitary conditions”. Such broad power would give the CDC the ability to dictate every corner of our lives under the guise of “general sanitation” and according to Judge Mizelle – that power would simply be too broad.

Airlines Were Quick to Permit Removal of Masks, For Now

And so, within hours of the order major airlines announced over loudspeakers on planes and lounges across the United States that the mask mandate has been repealed.

But not so fast, the Government will appeal to the 11th Circuit Court of Appeals and likely to the Supreme Court where SCOTUS gets to ultimately decide – if they wish- whether vaccinated and recently tested passengers are required to cover their face with a “piece of cloth” under the pretext of general “sanitation” powers that the CDC afforded to itself without following federal law.