The DOJ Is Reluctant To Continue Defending the CDC's Mask Mandate Because It Worries It Will Lose Again

Clarifying the agency's authority could impede future power grabs.

The Justice Department yesterday said it would appeal the decision vacating the federal mask mandate for travelers if the Centers for Disease Control and Prevention (CDC) decided that the rule "remains necessary for public health." Spokesman Anthony Coley added that the department "continues to believe that the order requiring masking in the transportation corridor is a valid exercise of the authority Congress has given CDC to protect the public health."

If Congress had indeed given the CDC a blanket power "to protect the public health," the mask mandate would clearly fall under it. But whether the Constitution allows the legislative branch to delegate such vast authority to an executive agency is another issue. So is the question of whether Congress itself has such broad authority, which would overlap with powers reserved to the states under the 10th Amendment.

Given the sweeping contemporary definition of "public health," that authority would encompass not just measures aimed at controlling communicable diseases but also any policy designed to reduce morbidity and mortality, including a wide range of paternalistic interventions. But while the CDC might like to exercise such power, it is plainly beyond the agency's statutory authority and the powers that the Constitution gives the federal government.

The central issue in Health Freedom Defense Fund v. Biden, the lawsuit challenging the CDC's mask mandate, was narrower: whether the Public Health Service Act of 1944—specifically, 42 USC 264(a)—gave the agency the power to decree that people who fly on commercial airplanes, use mass transit, or travel in taxis or ride-sharing cars must wear face masks. Kathryn Kimball Mizelle, a federal judge in Florida, concluded that the CDC did not have the power it asserted.

The mandate's supporters seem determined to obscure what was at stake in this case. "Public health decisions shouldn't be made by the courts," White House Press Secretary Jen Psaki told reporters yesterday. "They should be made by public health experts." But Mizelle did not make a public health decision; she made a legal decision, based on her understanding of the relevant statute.

Contrary to Psaki's implication, courts are not only authorized but obligated to make such decisions, as she surely would have conceded had Mizelle ruled in the CDC's favor. If politicians acknowledged the judicial branch's authority to interpret and apply statutes only when they liked the result, it would be fatal to the rule of law.

The Justice Department is not so bold as to suggest that Mizelle had no business determining whether the mask mandate exceeded the CDC's statutory powers. But it unsurprisingly disagrees with her conclusion, saying she misconstrued Section 264(a). Here is what that provision says:

The Surgeon General, with the approval of the Secretary [of health and human services], is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession. For purposes of carrying out and enforcing such regulations, the Surgeon General may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary.

That authority has been delegated to the CDC, which previously argued, in defense of its nationwide eviction moratorium, that the opening sentence and the phrase "other measures" give it carte blanche to impose any disease control measures it considers "necessary." The Supreme Court rejected that reading of Section 264(a), noting that "it would give the CDC a breathtaking amount of authority." As the Court observed, "it is hard to see what measures this interpretation would place outside the CDC's reach, and the Government has identified no limit…beyond the requirement that the CDC deem a measure 'necessary.'"

To illustrate that point, the Court offered some hypotheticals: "Could the CDC, for example, mandate free grocery delivery to the homes of the sick or vulnerable? Require manufacturers to provide free computers to enable people to work from home? Order telecommunications companies to provide free high-speed Internet service to facilitate remote work?" But those examples only scratch the surface.

If the CDC's understanding of its powers were correct, it would have had the authority to turn any of its frequently contentious COVID-19 recommendations, including its advice on mask wearing in schools and businesses, into mandates. Rather than focus on people who move because they are evicted, it could have simply decreed that no one is allowed to change residences. It could have required every American to be vaccinated against COVID-19. It could have unilaterally imposed nationwide shutdowns of businesses and ordered every American to stay home except for "essential" purposes. It could have prescribed civil and criminal penalties for people who defied those requirements, as it did with the eviction moratorium and the mask mandate for travelers. And it could have done any of these things not just in response to COVID-19 but also to control the spread of any communicable disease, including the seasonal flu and the common cold.

The Court found it highly implausible that such powers were lurking in a rarely used statutory provision, only to be discovered by the CDC 76 years after the law was enacted. It concluded that the list of specific disease control measures in Section 264(a) "informs the grant of authority by illustrating the kinds of measures that could be necessary."

Based on that principle, the CDC's burden in defending its mask mandate was to show that it was similar to the measures listed in Section 264(a). It argued that forcing travelers to wear masks was a form of "sanitation," a proposition that Mizelle rejected for several reasons that she laid out in her 59-page decision.

Mizelle distinguished between two definitions of sanitation. The broader definition encompasses measures aimed at keeping something clean, which arguably could include physical barriers, such as masks, designed to prevent infection. The narrower definition refers to measures aimed at cleaning something, such as "garbage disposal, sewage and plumbing, or direct cleaning of a dirty or contaminated object." Based on the statutory context and common usage when Congress approved the Public Health Service Act, Mizelle concluded that the latter definition, which does not encompass face masks, made more sense.

In Mizelle's view, that interpretation was bolstered by the ways in which Section 264(a) had been used before the CDC tried to turn it into a general disease control authority. "Perhaps the most notable use" of the provision prior to 2020, she observed, was "a decision to ban small turtles due to a risk of salmonella." She also noted that Section 264(a) seems to be "limited to property," while other provisions deal with quarantine and isolation of people.

Like the Supreme Court, Mizelle was reluctant to conclude that Congress had assigned powers as broad as those claimed by the CDC without explicitly saying so. The CDC's understanding of "sanitation," she wrote, "certainly would not be limited to modest measures of 'sanitation' like masks. It would also justify requiring that businesses install air filtration systems to reduce the risks from airborne contagions or install plexiglass dividers between desks or office spaces. So too, a power to improve 'sanitation' would easily extend to requiring vaccinations against COVID-19, the seasonal flu, or other diseases. Or to mandatory social distancing, coughing-into-elbows, and daily multivitamins."

If the Justice Department thinks Mizelle's interpretation of the statute is plainly wrong, you might wonder, why didn't it immediately appeal her ruling? Why did it make that decision contingent on whether the CDC decided that the mask mandate, which was scheduled to expire on May 3, should be extended yet again? If the Justice Department is determined to uphold "the authority Congress has given CDC to protect the public health," which it thinks Mizelle mistakenly denied, why wait?*

The answer is that the government's lawyers think there is a good chance that the U.S. Court of Appeals for the 11th Circuit, which includes Florida, would uphold a decision that the Justice Department portrays as clearly erroneous. And if the government appealed an unfavorable decision by the 11th Circuit, the Justice Department worries, the Supreme Court likewise would be apt to agree with Mizelle.

"I think that some judges could be persuaded by the administration's perspective, but maybe not on the 11th Circuit," University of Richmond law professor Carl Tobias told The Washington Post. "The 11th Circuit is ideologically quite conservative. It would be an uphill fight."

The New York Times likewise emphasizes the danger that an appeal could pose to the CDC's inflated sense of its own authority. "A ruling by a district court judge is not a binding precedent," the Times notes. "Appealing the matter would carry the risk that the [11th Circuit] could issue a ruling that constrains the agency's future conduct at least in its region, the Southeastern United States….And above it, the Supreme Court has a six-to-three conservative majority."

Describing those six justices as "conservative" is misleading if it means that they inevitably reach conclusions that political conservatives like. But it is fair to say they are more conservative than the other three justices when it comes to approving executive-agency powers that Congress never explicitly granted. To my mind, that's a good thing. But from the Biden administration's perspective, it may be preferable to leave things ambiguous, the better to facilitate future CDC power grabs.

*Update: On Wednesday evening, the CDC announced that an "order requiring masking in the indoor transportation corridor remains necessary for the public health," which means the Justice Department will appeal to the 11th Circuit.