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CDC

Federal Court Rules Against CDC Transportation Mask Mandate

The decision holds that the CDC exceeded its legal authority. But it may be vulnerable to reversal on appeal.

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On Monday, US federal district Judge Kathryn Kimball Mizelle issued a ruling holding that the Centers for Disease Control (CDC) mask mandate for airplanes, airports, and other transportation settings is illegal. At least for the moment, the federal government has announced that the mask mandate is no longer in effect, and most airlines have lifted it.

I am deeply opposed to the mask mandate, for reasons I summarized here. Nonetheless, I have doubts about the legal reasoning of today's opinion. If the Biden Administration decides to appeal, it's entirely possible the decision will be reversed.

The CDC claims that the mask mandate policy is authorized by 42 USC Section 264(a), the very same law that agency used to try to justify its nationwide eviction moratorium, which was invalidated by the Supreme Court in August. While I argued against the legality of the eviction moratorium from the very beginning, it seems to me that the transportation mask mandate rests on firmer grounds.

Section 264(a) gives the CDC the following powers:

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. [a later statute gives this authority to the CDC rather than the Surgeon General]

As described in my previous post on the mask mandate issue, the key difference between the eviction moratorium case and the present one is that the mask mandate doesn't have to rely on an ultra-broad interpretation of the catch-all "other measures" provision of the law. It can instead be defended as a "sanitation" measure. It seems to me that mandatory masking to prevent the spread of a respiratory virus at least plausibly fits within the meaning of "sanitation."

Judge Mizelle recognizes that this is the key issue in the case, and she relies on a narrower definition of sanitation. It's worth noting that the implication of her approach is that the CDC never had the power to impose a mask mandate. It's not a matter of the effectiveness of masking or the extent of the threat posed by the disease:

[S]anitation as used in the [Public Health Services Act] could have referred to active measures to cleanse something or to preserve the cleanliness of something. While the latter definition would appear to cover the Mask Mandate, the former definition would preclude it. Accordingly, the Court must determine which of the two senses is the best reading of the statute….

The context of § 264(a) indicates that "sanitation" and "other measures" refer to measures that clean something, not ones that keep something clean. Wearing a mask cleans nothing. At most it traps virus droplets. But it neither "sanitizes" the person wearing the mask nor "sanitizes" the conveyance….

Start with the immediate context. Sanitation travels in company with "inspection,
fumigation, disinfection, . . . pest extermination, [and] destruction." § 264(a). These terms.involve measures aimed at "identifying, isolating, and destroying the disease itself." Ala. Ass'n of Realtors, 141 S. Ct. at 2488. And though "sanitation" is "susceptible of multiple and wide-ranging meanings," it is "given more precise content by the neighboring words with which it is associated." United States v. Williams, 553 U.S. 285, 294 (2008). What these words have in common is that they involve identifying and eliminating known sources of disease. See Tiger Lily, LLC v. U.S. Dep't of Hous. & Urb. Dev. (Tiger Lily I), 992 F.3d 518, 523 (6th Cir. 2021) (summarizing subsection (a) as "government intrusions on property to sanitize and dispose of infected matter"). They do not maintain the status of being "disinfected" or "fumigated." Instead, they all change an object's status….

Customary usage at the time agrees. One method to assess the ordinary meaning of
a term is to search a database of naturally occurring language. A search returns the desired word as well as its context and, with a sufficient sample size, search results permit inferences on how a word was used. This method is known as corpus linguistics… The Court here searched the Corpus of Historical American English (COHAY) to find uses of "sanitation" between 1930 and 1944 [when Section 264 was enacted]. Of the 507 results, the most frequent usage of sanitation fit the primary sense described above: a positive act to make a thing or place clean. Common examples referred to sanitation in the context of garbage disposal, sewage and plumbing, or direct cleaning of a dirty or contaminated object. In contrast, by far the least common usage—hovering around 5% of the data set—was of sanitation as a measure to maintain a status of cleanliness, or as a barrier to keep something clean.

The above analysis is very thorough. But I remain skeptical. The broader definition of "sanitation" strikes me as more intuitive and more in accordance with ordinary usage than the narrow one. Among other things, the narrow definition would lead to some counterintuitive results. For example, if the CDC enacted a regulation barring defecation on the floor of a plane or train, that would not qualify as "sanitation" under Judge Mizelle's approach because it does not clean anything, but merely "keep[s] something clean" (in this case, the floor). Yet, I think, most ordinary people - both today and in 1944 - would agree that a ban on defecating on the floor qualifies as a "sanitation" policy. And, as Judge Mizelle notes, courts are generally required to follow the ordinary meaning of words in a federal statute, unless there is some strong evidence to the contrary.

I think Judge Mizelle's best argument against the broad definition of "sanitation" is this one:

Recall that Congress listed "fumigation" and "disinfection" and "destruction" alongside "sanitation." § 264(a). If the government is correct that sanitation allows for the CDC's Mask Mandate because it promotes hygiene and prevents the spread of disease, then the remaining words in § 264(a), such as disinfection and fumigation are unnecessary. Every act necessary to prevent disease spread would be possible under sanitation. It would thus be impossible to give effect "to every clause and word of [the] statute," Moskal v. United States, 498 U.S. 103, 109-10 (1990), because these separate words would all be subsumed under the umbrella of "conventional 'sanitation' measure[s]"…. Such a reading renders most of the second sentence mere surplusage, an untenable result when other interpretations are available. See United States v. Butler, 297 U.S. 1, 65 (1936) ("These words cannot be meaningless, else they would not have been used."). Instead, sanitation more likely refers—consistent with its most common usage at the time—to acts that remove refuse or debris from an area or object, a reading that preserves independent meaning for the other terms in § 264(a).

The canon against redundancy is a longstanding rule of interpretation, and it does seem like the broad definition of "sanitation" might make "disinfection," destruction," and "fumigation" redundant. But I'm not sure that a plausible definition of  sanitation broad enough to include the mask order must necessarily be so broad as to render the other terms superfluous. "Sanitation" could be interpreted to refer to ordinary cleaning measures - both those that "remove refuse and debris" and those that help prevent it from arising in the first place (as with the rule against defecation!). By contrast, terms like "fumigation" and "disinfection" might refer to the use of chemical agents and other more sophisticated techniques to forestall (in the case of "fumigation") or eliminate (in the case of "disinfection") infection. "Destruction" also has a distinct meaning, of course, as even a broad definition of the other terms doesn't necessarily allow complete destruction of possibly dangerous articles.

There are lots of other issues in the opinion. For example, Judge Mizelle argues that the CDC violated the Administrative Procedure Act (APA) by failing to go through the "notice and comment" rule-making procedure. That argument strikes me as plausible; at the very least, it seems strange that such a consequential and sweeping rule can be in place for many months without going through normal rule-making procedures. But I will leave it to APA experts to address. Less persuasively, she claims the mask mandate amounts to a "conditional release" of would-be travelers, rather than a "sanitation" measure, and that 264(a) does not give the CDC any power to restrict the "liberty" of individuals.

At times, Judge Mizelle's opinion reads as if she is taking a kitchen sink approach to defending her ruling - throwing out every argument she can, good, bad, or indifferent. This strategy makes sense in high school debate, and perhaps for some legal briefs. But it isn't a good idea for judges ruling on a case, especially an important one.

That said, the judge does make some good points, most notably with respect to the canon against redundancy. I think she's probably wrong about the bottom line. But the ruling is far more defensible than critics on lawprof Twitter, and elsewhere, are willing to admit.

I would add that the ruling might have been influenced by the decline in the CDC's credibility caused by the agency's overreaching in cases like the eviction moratorium and Title 42 "public health" expulsions, and the increasingly incoherent nature of its position on masks, with the transportation mandate at odds with its recommendations in other settings.

Such factors, ideally, should not influence courts. But, at the margin, judges may be reluctant to defer to the supposed expertise of an agency with such a dubious track record.

Skepticism of the CDC is particularly evident in a section of the decision where Judge Mizelle concludes that the mask mandate violates the APA  by being "arbitrary and capricious" because it "provides little or no explanation for the CDC's choices," including the many exceptions to the mandate. The Judge pointedly rejects the argument that courts must simply defer to the agency's scientific judgement, emphasizing that the agency "needed to explain why it acted as it did."

At this point, it's unclear whether the Biden Administration will appeal the ruling. If they do, it's very possible the court of appeals will stay the trial court ruling, and ultimately reverse it. If so, we may not be free of the transportation mask mandate for long. But I, at least, plan to enjoy it while it lasts!

UPDATE: It's worth noting that this is not the only case challenging the transportation mask mandate. It's actually one of the less prominent ones (filed by a small nonprofit organization and two individual travelers. There are other lawsuits on this issue, as well, including one filed by 21 state governments, which raises some of the same issues, but also some that are different (such as claims that the mandate violates constitutional restrictions on federal "commandeering" of state governments).

UPDATE #2: I have made a few minor additions to this post.

NEXT: The Mask-Mandate Remedy

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  1. Sticking to the science—people aren’t masking properly with respect to Omicron (and compliance is only getting worse) so the proper public health strategy is to provide guidance while rescinding mask mandates…because people truly worried about Covid can’t depend on others to properly mask. Individuals need to make decisions about their risk level comfort going forward.

    1. The judge was appointed by Trump. The Ivy indoctrinated, elitist, Democrat attack dog is nitpIcking the language of her decision. USA. USA. USA.

      1. The same criticism of the language of the decision was made on Commie propaganda outlet NPR by an Ivy indoctrinated lawyer. That makes this hero judge's opinion even more valid. Somin and other Ivy indoctrinated lawyers are nitpicking her proper rational and science based opinion. That is a great endorsement in most people's book. These are the internal enemies of our nation. The judge is the hero.

    2. Were they assuming everyone (or almost everyone) would be careful to always wear a mask correctly so it works?

      Public health authorities should actually consider how people behave.

  2. While this administration does seem to relish stomping on people's freedom, I have a feeling they might just throw in the towel on this one. Though I imagine giving people a few days freedom then yanking it away will do wonders for Biden's sky-high popularity. The way things are going, the exasperated Democrats in Congress might just John-Tyler old Joe and toss him out of the party.

      1. You'll have to get used to the exaggerations here. Apparently we're all just helpless captives.

        1. Apparently we're all just helpless captives.

          Apparently when all the airlines, Uber, Amtrak, etc. etc. drop their mask requirements literally within hours of the ruling, and you see rafts of videos of the reactions of people on planes like this and this, there was something at play other than mass voluntary compliance.

          1. How do antisocial, disaffected, anti-government cranks handle stop signs, center lines, student vaccination requirements, traffic lights, military vaccination requirements, clothing requirements, licensure requirements, and myriad other elements of modern, civilized, mainstream American life?

            I am not necessarily interested in understanding the clingers' perspective. Their continuing compliance with the preferences of better Americans is sufficient.

            1. Ah, yes, another brownshirt comment.

              And don't look now, but in this case, they are NOT complying. As LoB said, within hours of the decision, the mandate was eliminated by virtually everyone. So our "betters" are losing.

              And while you state you are not interested in understanding others' perspective (a typical fascist attitude), you actually raise a good point. There are plenty of other "mandates" that are adhered to with little objection. Contemplate why. (Well you are incapable of that, but others here are.)

              1. Brownshirt? Of course. Consider the source

              2. You guys fluster and bluster, but mostly you just comply obsequiously with the preferences of better Americans.

                To change the situation, clingers would need to stop losing the culture war in modern America.

                Which is about as likely as Melania Trump earning that college degree she claimed to possess, the Palin family racking up more college graduations than arrests, or South Texas College of Law Houston leaving the lower reaches of law school rankings.

          2. And that would matter except for the everyone not like me is deplorable attitude. Excluding everyone who disagrees, agreement was universal.

  3. Ilya might be right on the legal merits here, as much as I like the result and find the arguments personally compelling. That said, I don't think the abstract legal merits are what is going to decide this issue. The political winds are blowing hard against the mask mandate at this point. Hearing stories of planes full of people cheering the news shows that. The WH is going to have a hard time putting that back in the bottle without massive blowback. Maybe they don't care and will go down fighting in some misplaced sense of principle - the administration has shown poor political instincts of late. But I'm optimistically hoping that they find some face saving excuse to back away from the mask silliness. Maybe a sudden discovery that case rates have ticked down the last few days (they have, per JHU), justifying a change in the CDC guidance?

    1. I don't know that they even need to claim it's a sudden discovery: "We knew we were nearly out of the woods, and only renewed the mandate for another 15 days out of an abundance of caution. The data is still trending downward, just as we expected...."

      1. A pair of tighty-whiteys cannot stop flatulence (the particles of which are far larger than a virus is). Why should a made in china not certified (don't believe K95 nonsense) will?

        Plus, the evidence shows that high mask area incidence of disease tracks slightly HIGHER in case load than low mask incidence. And no mask states have recovered faster.

        But the science doesn't matter when it's contrary to the desire to control others

        1. Flight-ER-Doc
          April.19.2022 at 2:09 pm
          Flag Comment Mute User
          Plus, the evidence shows that high mask area incidence of disease tracks slightly HIGHER in case load than low mask incidence. And no mask states have recovered faster.

          As a follow up to Flight ER doc - The Kansas mask mandate counties vs the kansans non mask mandate counties which was heavily promoted by the CDC which showed the Mask mandate counties had lower covid transmission rates. Left unnoticed is the study period was cut short when infection case rates in the mask counties started to exceed the non mask county infection case rates . I email the Kansas university center for policy analysis who provided me with the excel spread sheet with the raw data. I subsequently emailed to ask if they were going to update the study past the abreviated shortened study period but received no response. Funny how the study authors did not want to disclose the higher infection rates in the mask counties.

          1. We have reams of data from all over America—masking mitigated spread prior to Omicron and saved tens of thousands of lives. DeathSantis killed more Americans than Osama Bin Laden for opposing mask mandates.

            1. Sebastian

              There is zero reams of data supporting that position

              Further as I pointed out with the Kansas study, they cut off the study period after approximately 6 weeks when the data showed otherwise

              Ever notice how all the vaccine effectiveness studies cut off after 6 months - it’s done on purpose in order to misrepresent the actual effectiveness

              1. Lol, you nitwits killed more Americans than Osama Bin Laden—all praise to Allah, right?

              1. The graph the guy uses shows masks worked through Delta…how can you not see that?? Nothing works to mitigate spread of Omicron except possibly medical grade masks and goggles.

                1. Sebastian Cremmington
                  April.19.2022 at 9:39 pm
                  Flag Comment Mute User
                  The graph the guy uses shows masks worked through Delta…how can you not see that?

                  Sebastain - you seriously need a new pair of reading glasses. the graph show no such thing.

    2. Like you, I'm not sure whether the apparent thoroughness of the judge's opinion conceals important legal flaws, but I agree that the immediate reaction from flight attendants and passengers doesn't suggest that she's on the wrong side of public opinion.

      In a carpe diem spirit, I would guess that if Judge Mizelle were to hand in her judicial commission right now, and run for President, she might well give the Orange One a run for his money for the GOP nomination - particularly as she has sucessfully infuriated all the usual suspects, a vital card to play in a GOP primary.

      1. she might well give the Orange One a run for his money for the GOP nomination

        She might. Which tells you more about GOP voters than anything else.

        Mizelle is a strong candidate for least-qualified federal judge ever - remember when Adler was singing the praises of Trump's nominees?

        Her logic here certainly advances her candidacy.

  4. Professor Somin, as usual, makes good points. He does not much address, though, the argument for vacateur inasmuch as the CDC nowhere outlined its underlying reasoning, evidence, and the conclusions drawn therefrom which give rise to the order.

    That is a requirement under the law, and the CDC ignored it, while, as the decision noted, providing pages of support for other such, upheld, orders.

    1. I noted this as well. Ok, we've heard all the analysis regarding vacateur. Now let's hear the analysis of the almost off-hand way the CDC justified its regulations. To say nothing of which agency is setting those regulations. Last I checked, the FAA controls our airspace, not the CDC. Why are they not the ones promulgating these regulations?

      1. It was Faux Joe who provided the CDC with an Executive Order, dictating that they come up with the rule, which covers more than airspace, including trains, buses, and rideshares.

      2. So, to give another example, insider trading is perfectly legal as long as I do it on board an airplane? Because the FAA controls our airspace, not the SEC...

        1. Not a question of what is legal, just WHO is doing the regulating. Staying in your lane is part of the checks and balances doctrine.

          1. Ah, so insider trading on board an airplane is legal unless the FAA adopts regulations prohibiting it? I'm still trying to figure out your logic as to why the SEC regulating securities trading or the CDC regulating public health measures isn't "staying in your lane"...

            1. If trading on a plane were a conceptually separate thing from trading on the ground, the FAA may have a finger in it.

              1. Is wearing a mask on a plane a conceptually separate thing from wearing it anywhere else?

                1. Yes. You are not required to wear one in your home.

                2. Yes, very. You are under quite a different regulatory regime as a passenger than you are on the ground.

  5. "I think she's probably wrong about the bottom line. But the ruling is far more defensible than critics on lawprof Twitter, and elsewhere, are willing to admit."

    This is quite fair.

  6. But, at the margin, judges may be reluctant to defer to the supposed expertise of an agency with such a dubious track record.

    Or, to put that another way, "at the margin, judges are more likely to think they can get away with writing a dubious judgment striking down agency action when the agency has a poor reputation."

    1. Deciding not to defer to an unsubstantiated order by an error-prone agency does not make a judgment "dubious".

      1. No. All the points made by prof. Somin make it dubious.

        1. His only point was that he disagrees with the breadth of the word "sanitation". His analogy of choice is defecating on the floor. I think that says an awful lot about how weak the argument is.

  7. The above analysis is very thorough. But I remain skeptical.

    Of course.

    Oh the irony of the APA. 🙂

  8. A system where a single judge can vacate the decisions of a single agency whose single regulation has had enormous, direct impact on every person in the entire country on the basis of that agency's mere say-so is not a system with effective checks and balances.

    Just sayin'.

  9. " . . . the CDC's Mask Mandate because it promotes hygiene and prevents the spread of disease . . . "

    Does it matter that this is false?

    1. Presumably it would, but it isn't. (As exhaustively - literally - discussed on this blog many times before.)

      1. A different (much stricter, probably unenforceably so) regulation might make a difference. At least in stations, although maybe not on trains or buses (because they don't have enough air exchange) or planes (because they have plenty). And at least for earlier variants, although maybe not omicron or BA.2.

        Once one contrasts the actual studies that are available with the current disease and the scenarios where this regulation was applied, the hypothesis quoted above is pretty clearly false.

      2. Please link me a RCT study of masks that shows a significant effect on respiratory virus transmission rates. Because afaik, the only RCT trials on masks with respect to respiratory viruses found no statistically significant effect.

        1. Please link me a RCT study of parachutes that shows a significant effect on survival for people jumping out of airplanes.

          1. The only RCT I know of shows no statistically significant effect.

            https://www.bmj.com/content/363/bmj.k5094

            1. That's my kind of RCT.

          2. We do have RCT trials of mask use against respiratory virus transmission (both flu and cold). No statistically significant effect.

            (We even have RCT trials of masks during surgeries - also no significant effect).

            Those results are surprising, but they're the actual results of well-crafted RCT studies.

            As such, it's not unreasonable to ask for a mask RCT study that shows a significant benefit of masks, since all the prior evidence suggests that there isn't one.

        2. There is the one 2021 Bangladeshi RCT study that showed some minor benefit on transmission from surgical masks or better for older age groups. The results of that study were over-hyped when it came out but they weren't zero. (I hate masks and think they're mostly useless but I do like to be aware of the data that is out there.)

          1. I'll admit to not noticing that one when it came out.

            I did review the literature when the pandemic started because Fauci's original statement that masks shouldn't be worn surprised me. Turns out, all the literature on masks and respiratory viruses prior to the pandemic actually support the 'no effect of masks on transmission' idea.

            I doubt the Bangladeshi trial is enough to shift the meta-analysis across all mask RCT studies, but yes, it is useful to know of it. (Now I need to track that down, read their methods, and check their statistics).

  10. While I think extending the mask mandate by two weeks is pretty stupid and it should be done away with by now, this is nothing but a Federalist Society hack that should never have been appointed anyhow. The ABA said she was not qualified but here we are.

    Exhibit A when someone wants to say that liberal judges are "activist" while conservative ones aren't. Her reasoning is pretty atrocious and it shows.

    1. "ABA said she was not qualified "

      ABA does not decide such things. Its a trade group, left leaning with less than 15% of American lawyers as members. She didn't meet their standard of 12 years practice, that's all.

      You are really going to hate her on the 11th circuit in 3 years.

      1. Feel free to make a case that she was qualified -- let alone the best candidate -- for that spot.

      2. She didn't meet their standard of 12 years practice, that's all.

        No, that's not all. She never tried a case, civil or criminal. That's a major shortcoming for a trial court judge. It obviously fails the ABA standard of “substantial courtroom and trial experience as a lawyer or trial judge," which for some reason you failed to mention.

    2. The reasoning was fine, it was the mask mandate that was arbitrary, enacted without justification.

  11. [T]he Surgeon General may provide for ... sanitation [of] ... 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.

    Not sure where you get sanitizing people's breath from that.

    1. Your first mistake is thinking that 'sanitation' is the only word which matters.

      1. Also, it's not their breath which is being sanitized; it's the air.

        1. The mask is only a detour - not a filter

          All fluids seek the path of least resistance - what makes you think covid would seek the path of most resistance?

          Can you point to an RCT study showing masks are effective - of course not -

          1. I don't mean to doubt your understanding of fluid dynamics, but I don't think that statement is nearly as conclusive and explanatory as you think it is.

            Actually, I do have serious doubts, since you apparently decided to remove friction from your model entirely.

            Your premise is wrong from the start.

            1. Show us a study that shows any difference in infection rates between mask and unmasked regions. - there are nine that don’t have serious flaws

              The Kansas mask study being prime example

              1. None - not nine

            2. See Amir post below

              Show near zero difference

            1. A - that is not a RCT study
              B - the results are based on telephone survey - pretty worthless study by any standard

  12. This case probably illustrates the best argument that can be made for Chevron deference. Overruling Chevron, it could be argued, will inevitably lead to rulings like this.

    Why should rulings on issues of fundamental import be made solely by judges consulting dictionaries, with no consideration whatsoever of matters of expertise? And when dictionaries give several meanings, as they often do, why should judges be the ones to pick which one, based on their personal predispositions, with no accountability to anyone for the outcome?

    Chevron deference here would lead to ruling in the administration’s favor. The meaning of the statute is ambiguous. Under Chevron, an ambiguous statute means the agency gets to decide the matter based on expertise, nog courts based on dictionaries.

    And do we want a society where government’s ability to respond to an emergency constantly gets interfered with based on finely parsed technicalities?

    1. And do we want a society where government’s ability to respond to an emergency constantly gets interfered with based on finely parsed technicalities?

      ReaderY, to answer directly: Yes, especially when our rights of free expression, religious exercise, the ability to earn a livelihood are taken away by executive order.

      1. Are they? Because I must have missed that.

        1. Congratulations on coming out of your two year coma.

        2. What do you call it when the workplace you use to earn a living (a gym, a restaurant etc..) is forced to shutdown under an EO?
          Do they have television, newspapers, internet in The Netherlands, or are you simply not paying attention?

        3. Are they? Because I must have missed that.

          You must have a great view of your upper GI tract.

    2. Wonder what Reader thought of all the "results oriented rulings" that held up Trump for all those years....

      1. No wonder that you were against all those "results oriented rulings," but have no problem with this one.

    3. "Chevron deference here would lead to ruling in the administration’s favor. The meaning of the statute is ambiguous. Under Chevron, an ambiguous statute means the agency gets to decide the matter based on expertise, nog courts based on dictionaries."

      But the meaning of the statute isn't ambiguous according to this judge, in fact, that's practically the entire thrust of her ruling. In her assessment, it's the agency that's playing fast and loose with the meaning of the text, not the text itself.

    4. Or we could do what we used to do, have the president go to Congress and ask for authorizing legislation to deal with said emergency. That is much more in line with Constitutional democracy than stretching decades-old statutes to cover new circumstances.

    5. Even Chevron deference doesn't get them out of APA requirements, like notice and comment, or adequately justifying agency decisions.

    6. Actually, I do want a society where the ability of unelected government agencies to respond to an emergency is limited and circumscribed. I would prefer a society where most of the actions of the government in response to this pandemic since April 1, 2020 was specifically voted on by Congress. I'm happy to have experts employed by the govt providing advice but they should not be setting policy. Mandates and regulations that have the force of law should be authorized specifically by the sovereign legislature.

    7. This is clearly a case where the President is writing legislation rather than the legislature. He should've gone to Congress and asked them to write Covid laws for planes.

    8. The notion that agencies have special insight into the meaning of the words used in statutes is questionable. The statutes weren't written by or voted on by agencies. So what relevance is an agency's subsequent interpretation of words they had no part in selecting?

      1. Chevron doesn't argue that agencies have "special insight into the meaning of words..." It simply says that if the agency's interpretation is reasonable, it should stand, even if other reasonable interpretations are possible.

        1. Why should agencies have that power if they don't have special insight? I can read a statute at least as well as bureaucrats can.

          1. Agencies don't have special insight into statutory interpretation. They (hopefully) have special insight into the subject of the regulations.

  13. Remember all those finger wagering morality lectures on the proper role of the judiciary we got every time some random District Judge in Guam would put in place a national injunction against anything Trump did? You know the one where how dare Trump point out that one judge on a far flung island could hold up everything? And how it was "dangerous" that he would dare question the judiciary because of the important nature of the check and balance within our system? Yeah those fun ones.

    Seems a few years later, the lefties forgot all about that because now they are trashing one judge, who arguably, took less drastic action then some of those activist libs did a few years ago. Now you can see the dog whistles of "Trump judge" and "appointed for life" all over the liberal media. Or my favorite "how can one judge decide this for an entire county?????!!!!?????". Tell that to states that had gay marriage forced on them by a random District Judge or the way the libs have forced public policy upon us for the last 3 generations.....

    1. Yeah, we warned them about the wheel turning. But the Resistance!!!! had to be served.

      1. The record vividly demonstrates that when the wheel of American progress turns, clingers generally get crushed.

        Thank goodness.

    2. "Or my favorite 'how can one judge decide this for an entire county?????!!!!?????'"

      What I say in response to this is, actually, it's even worse than that. How can one just agency decide things for an entire country? No comments allowed, no notice given, no votes taken, no signature from the President. Just issued as being instant "federal law" -- which itself wasn't even a true statement, misleading at best -- like some declaration by a Sovereign.

      Neither of these things are good, healthy signs. They are signs that we no longer have a functioning system of checks and balances.

      1. We don't even have a functioning legislature, instead, the President makes the laws.

    3. You understand that there's a difference between lawyers/law professors/pundits/etc. criticizing a judge, and POTUS doing so, right?

      1. The only difference is one is a lawyer (etc.) and the other is the POTUS. Both have equal amounts of freedom of speech.

        1. So, that's a no, you don't understand the difference.

          Hint: "Freedom of speech" isn't the issue at all.

  14. She gave a political gift to Biden, don't appeal and all the libs will blame her, not him, for something being lifted soon anyway.

    1. or something being lifted soon anyway

      We'll never know, but I'm not so sure they wouldn't have just kept on with the death-by-a-thousand-15-week-intervals routine until something like this intervened, for precisely the blame-shifting reason you mention. Just as well to get it over with.

      1. I'm sorry, did someone promise you that there would be no more variants?

        1. I think your best play at this point is to go huddle up with Eric Ding-a-Ling and sob into your beer. It was crystal clear from the mass reaction in the few hours following the ruling that the real world is done with your Chicken Little crap.

          1. Modern America has had its fill of conservatives' backwardness, old-timey religion, multifaceted bigotry, backwater ways, and general ignorance. Replacement continues daily. Some of you guys bluster a lot, but do any of you genuinely believe that right-wingers are going to diminish -- let alone end, let alone reverse -- the tide of the American culture war?

            An Orioles-Pirates World Series seems more likely than a conservative comeback in America.

    2. Yes. Funny how this seems to happen all the time.

      1. LOL you think this is a liberal plot?

        1. No. Just that it's the same sort of dynamic over and over.

          1. Confirmation bias, then. Because this is not part of any pattern.

            1. It is a pattern and seems to be an inherent aspect of our political structure. President Trump also probably wanted to deflect blame to courts for what he couldn't do.

    3. On the other hand, not appealing will make future fascist dictates harder to "sell".

  15. Somin's analysis seems right, if perhaps a bit charitable in assessing the strength of the redundancy canon argument. That canon is supposed to be applied with due regard for context and other canons. It seems to me it is doing way too much work in Judge Mizelle's opinion.

    Scalia and Garner's "Reading Law" has a nice discussion of the limitations of the canon (referred to there as the Surplusage Canon). Among other issues, they note that drafters of legal documents are notorious for "doublets" and "triplets" - adding redundant language either as a "belt and suspenders" instinct or simply because lawyers and politicians generally err on the side of redundancy. No one who reads legal documents for a living will argue that point.

    Here it strikes me as vanishingly unlikely that the drafters of Section 264(a) had any intention of distinguishing cleaning what is already dirty from preserving what is already clean. That distinction would make no sense given the purpose of the statute, which aims to prevent "transmission" and "spread" of disease.

    The COHA search results showing that most uses of "sanitation" referred to cleaning, rather than maintenance of clean conditions, doesn't add much. Just because one particular meaning is more obscure than another, it cannot be assumed that the obscure meaning was not intended. This is especially so when it isn't a binary choice - when context suggests the possibility that both meanings could have been intended.

    1. I agree with this comment completely. Applying the surplusage canon to a list is often a bad idea. If there are separate paragraphs in a statute, then we might assume that the legislature wanted those separate paragraphs to cover separate things. But if you say that to achieve X an agency can do A, B, C, D, E, F, and G, and other measures, then saying, "Well, we must interpret D narrowly so that it doesn't overlap with B" is just bad statutory interpretation.

    1. I'd add that folks should read the John Tierney article that that chart was taken from.

  16. "Chevron deference here would lead to ruling in the administration’s favor. The meaning of the statute is ambiguous. Under Chevron, an ambiguous statute means the agency gets to decide the matter based on expertise, nog courts based on dictionaries."

    But the meaning of the statute isn't ambiguous according to this judge, in fact, that's practically the entire thrust of her ruling. In her assessment, it's the agency that's playing fast and loose with the meaning of the text, not the text itself.

    1. Here's the thing. When you're reading an opinion, you're reading ... an opinion. You should fundamentally understand that. This isn't what the law is ... or even what the facts are. This is the judge making an argument.

      Some judges put their thumbs on the scale more than others. I still remember very early in my career, reading an appellate decision that repeatedly cited a case for a proposition. Trouble was ... they got it wrong. Completely wrong. The actual case was out of Puerto Rico, and the appellate judges citing didn't understand that it was about a private entity, not a public one, which made all the difference. Oops. (Or maybe they did ....)

      Anyway, there are numerous problems with this opinion that were immediately apparent. The incredibly strained reading (to say that the judge has a cramped reading of any text is to do a disservice to cramped readings). The "kitchen sink" approach- this is something a results-oriented judge does when they are hoping that something, anything, might get preserved on appeal, as opposed to actually working through the issues. The repeated citations to dissenting opinions and non-controlling opinions.

      Then there are the issues which only come up on a closer read- as noted in a prior post, the Judge not only does an incorrect citation (citing an opinion as a majority opinion when it isn't) but also cites a case for a proposition for which it doesn't stand; my assumption is that people will find most of these issues as they dig in.

      Just as they will find more factual issues given the way that she incorrectly framed the timeline.

      Finally, and most importantly, I go to the remedy issue which immediately drew my attention- I think Prof. Bray covered this, but there is a grave danger in allowing a single district judge, anywhere in the nation, the power to vacate (through vacatur) a nationwide policy simply on a whim; mostly because it's non-precedential and non-binding, and because it hasn't even had a single pass with an appellate court. For that reason, any normal jurist should, at a minimum, provide the opportunity to appeal given the equities of the issues (I mean, there might be circumstance that wouldn't warrant it, but those aren't present here).

      All of which leads me to believe that this is a decision, not of law, but bound in the politics of the issue. It's just crafting a narrative to further her career. Which .... great? I'm sure she's on the shortlist for a COA appointment in the next GOP administration.

      1. "When you're reading an opinion, you're reading ... an opinion. You should fundamentally understand that. This isn't what the law is ... or even what the facts are. This is the judge making an argument."

        A good reminder, which helps explain why the framers considered state nullification a rightful remedy.

        1. Some of them.

    2. To use Professor Somin’s example, doesn’t it seem just a wee bit of a stretch to say that “sanitation” measures unambiguously don’t include prohibitions against defecating on the floor, because sanitation unambiguously includes only measures that make something dirty clean, never measures that prevent something clean from becoming dirty? And isn’t it a wee bit odd that the statute somehow unambiguously excludes the second meaning of “sanitation” even though it’s one of the meanings that appear in the dictionary? (See for example Webster’s Dictionary, which lists both meanings.)

      https://www.merriam-webster.com/dictionary/sanitation

  17. The mask mandate, and any judicial opinion that supports it, is a sham and a joke.

    Congress never passed a law requiring people to wear masks anywhere. Yet the airports are blaring "federal law requires . . . " The administrative state passed that law. This is blatantly contrary to the Constitution.

    1. Constitutional law pointers from downscale culture war losers are always a treat.

    2. Have you ever actually understood what you thought you were bitching about?

      So far your track record suggests the answer is 'no.'

      1. All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

        1. Your law school really did you a disservice. Do you see 'nondelegable' in there? Do you think the Congressional delegations in the Founding era were just errors?

          1. The Legislative cannot transfer the Power of Making Laws to any other hands. For it being but a delegated Power from the People, they, who have it, cannot pass it over to others. ... And when the people have said, We will submit to rules, and be govern'd by Laws made by such Men, and in such Forms, no Body else can say other Men shall make Laws for them; nor can the people be bound by any Laws but such as are Enacted by those, whom they have Chosen, and Authorised to make Laws for them. The power of the Legislative being derived from the People by a positive voluntary Grant and Institution, can be no other, than what the positive Grant conveyed, which being only to make Laws, and not to make Legislators, the Legislative can have no power to transfer their Authority of making laws, and place it in other hands.

            John Locke

            1. Which you should know has zero legal probity.

              Switching from a legal case to moral table pounding is a tell.

              1. This is not moral table pounding. It is pure logic and basic legal reasoning. Here's the key part again.

                The power of the Legislative being derived from the People by a positive voluntary Grant and Institution, can be no other, than what the positive Grant conveyed, which being only to make Laws, and not to make Legislators

                1. "pure logic and basic legal reasoning"

                  Where did you get your law degree, Sophistry U?

                  1. The power of the Legislative being derived from the People by a positive voluntary Grant and Institution, can be no other, than what the positive Grant conveyed.

                    What don't you understand about this?

                    1. It's just a guy talking, and carries no legal weight in US law, no matter how much you love it so.

                    2. A foreigner who invested in the slave trade, as I recall. Just the guy one would expect clingers to propose as a speaker of American truth.

                    3. Logical content is independent of the speaker.

                      A 12 year old could understand this.

                    4. Ahh yes, the famous legal argument 'appeal to logical content.' Best served with a 'Your Honor, A 12 year old could understand this.'

                      Dude, you appealed to authority. That you confuse something you really agree with hard with logic is really a bad sign for your critical thinking. And any clients you have.

                    5. I'm not appealing to authority. I'm citing Locke because he has a good statement of the issue. Congress does not have power not granted to it.

                    6. The power of the Legislative being derived from the People by a positive voluntary Grant and Institution

                      Lots of formulations of from where the Constitution's authority comes from; this is just one.

    3. Dude - you want to law school. Did they not teach you that administrative law is a thing that exists?

      1. Administrative law is unlawful. - Philip Hamburger

        1. Not quite the same as 'a sham and a joke.'

          But even if you quit throwing out idiot-bombs, I don't think you want to get into a battle of academic authorities on administrative law.

        2. Philip Hamburger is a disaffected loon with plenty of silly ideas and the backing of the least among us -- mainstream academia

  18. The major airlines have all dropped their mandates, passengers are cheering and even the ride shares have dropped them.

    LET IT GO!!!!

  19. I can see a "Stay" not because of the interpretation of the word "sanitary" but because the trend has been ANYTHING in the name of Covid is OK. Yes unelected bureaucrats can rule by edict because its an EMERGENCY! Literally the constitution is suspended.

    Ruling was common sense but that doesn't necessarily apply.

    Why break the streak? Hope I'm wrong

  20. Maybe Brandon and his minions which includes Obama judges nationwide will let it go because it snot popular.

    1. Shades of Chumby, there. 🙂

  21. Color me skeptical that the Center for Disease Control wasn't intended by congress to control the spread of disease.

    They can mandate the fumigation of planes, but not the wearing of masks on those planes?

    That seems counterintuitive.

    It's more plausible that it falls under sanitation, or is sufficiently sanitation-adjacent as to properly fall under "other measures."

    sanitation
    săn″ĭ-tā′shən
    noun
    The study and application of procedures and measures designed to protect public health, as in the provision of clean water and the disposal of sewage and waste.
    The disposal of sewage and waste.
    The practical application of knowledge and science to the preservation of health; the putting and keeping in a sanitary condition.

    1. Congress may well have intended to delegate broad autocratic authority to control the spread of disease.

      The only problem with that is that Congress isn't permitted to delegate its legislative powers.

      1. The only problem with that is that Congress isn't permitted to delegate its legislative powers.

        The only problem with that is that you're wrong, either in your statement or in the notion that issuing regulations is the exercise of legislative powers.

        You may want that to be true. You may fervently hope that SCOTUS one day holds that to be true. SCOTUS may one day in fact hold that to be true. But it is not actually true as a descriptive statement of the current law in the United States.

        1. As Randy Barnett put it, the Constitution, is not the same thing as what the Supreme Court says about the Constitution. I'm talking about the former.

          1. Well, when Randy Barnett becomes binding precedent, it will be relevant in this discussion. As of now, the judge is supposed to follow SCOTUS, not Prof. Barnett.

            1. So according to David Nieporent, the meaning of the Constitution is irrelevant to this discussion. Thanks, your opinion is duly noted.

              1. It's a discussion about a district court ruling, you shameful excuse for a lawyer.

                1. In this particular subthread, Bubba Jones said "Color me skeptical that the Center for Disease Control wasn't intended by congress to control the spread of disease."

                  Indeed, he has a good point. Somin cites the statute above. The CDC 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."

                  So tell me your thoughts. Isn't that provision alone quite sufficient for anything the CDC wishes to do, including any and all sorts of mask mandates? Why do we even need to talk about the meaning of "sanitation"?

                  1. Except even that's not your legal argument - *your* argument is that the administrative state is unlawful.
                    And you seem to think that's germane to what a district court opinion can say.

                    Backing off and trying to use someone else's thesis as a shield is probably your best move here.

                    1. You didn't answer my question.

                  2. Because the judge demanded it. Because without that demand, her results-based opinion can't get to where it needs to go.

                    By her logic, air filtration between infectious disease wards of a hospital and other areas are entirely optional.

                    1. Forget about this opinion and pretend you are the judge. What do you say to my question?

                    2. I quite literally gave you the reason why she felt it necessary.

                      The text of the law in question:

                      "...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."

                      The only way she can get to the result she wanted, was by ignoring "and other measures," thus, the insistence that "sanitation" be defined by her cherry-picked dictionary, which itself neither was then nor is now a universal understanding of the word.

                      I wonder if you even bothered to actually read the decision, or if you're just as bad at law as she is and similarly don't give a fuck about results-based "logic."

                    3. The question I asked is whether this part of the statute:

                      "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"

                      is sufficient to make a CDC/administrative mask mandate, or any other public health measure you can imagine for that matter, legally valid.

              2. So according to David Nieporent, the meaning of the Constitution is irrelevant to this discussion. Thanks, your opinion is duly noted.

                Area Man Passionate Defender Of What He Imagines Constitution To Be.

          2. Lawyers deal with what the law is.

            You seem to be confusing that for what you think the law ought to be. For Brett & co. it just makes them look foolish. For you, it can make you bad at your job.

            1. I'm not confusing it. This is an academic blog that discusses theory. Legal academics are so focused on theory, very little of anything they ever do is relevant to the practice of law. And yet even legal academics tend to be narrowly focused on what the Court says. Any sort of originalist argument about most topics today would be laughed out of court.

              1. You seem to be defending this opinion with ought-law:

                "The mask mandate, and any judicial opinion that supports it, is a sham and a joke."

                Don't go wobbly on us now!

                1. I'm afraid I don't follow. What is your point?

                  1. That your dragging in your wishes on how the Constitution were to be interpreted radically differently is not relevant to a conversation about this opinion, though you seem to think it is.

                    1. Your ad hominems, personal insults, substance-free and non-responsive replies are even less relevant.

          3. Randy Barnett, another legal misfit of the caliber to associate voluntarily with Josh Blackman

    2. "They can mandate the fumigation of planes, but not the wearing of masks on those planes? That seems counterintuitive."

      Hmm, not to me. An airplane isn't a person with inalienable rights that no government may legitimately impinge upon.

      That's the thing which I find frequently missing throughout these conversations. One half of the commenters seem to think that the government can do pretty much anything it wants to in the name of public health, and the other half seem happy to just carve the legal turkey into smaller and smaller bites.

      What's missing is any recognition that our government exists only to protect our rights, not to grant them. We, the people, are the sovereign authorities, government is just our proxy.

      1. Hmm, not to me. An airplane isn't a person with inalienable rights that no government may legitimately impinge upon.

        That has nothing to do with this decision. It turned on the meaning of the statute, not on some claim that requiring the wearing of masks violated someone's rights.

    3. Color me skeptical that the Center for Disease Control wasn't intended by congress to control the spread of disease.

      The most sure-fire way to control the spread of disease is, of course, to eradicate the sick.

      Magic words (even poignant sounding ones) ain't a blank check.

  22. "we may not be free of the transportation mask mandate for long. But I, at least, plan to enjoy it while it lasts!"

    The stories of entire plane loads of people immediately ditching their masks corresponds with my experience. There are vanishingly few people who continue to wear masks after a requirement is lifted. WHY? Where are all the mask believers?

    Most of the very same people loudly professing a belief in the sacrosanct value of mask wearing, immediately stop wearing masks when it's not a requirement. This is very telling. It's not the masks they value, it's the autocratic and arbitrary exercise of power that they find alluring and comforting.

    1. I don't know where you live — maybe in OANistan or something. Here in the NE, there are far more than "vanishingly few" people continuing to choose to wear masks when not required to. I'd estimate that in my daily life it's 10 - 20% of the population.

      1. In more rural parts of "the NE" what I said holds true. But yes high density liberal areas are higher.

        I'll bet mask use declines further, precipitously even, over the next 1, 2, 3+ months.

        What do you think would explain those who professed belief in great utility of masks previously, but then later immediately stopped wearing them when not required?

        1. That facts on the ground had changed? The same reason the mandates disappeared was the same reason they stopped wearing masks.

          1. Interesting. So mandates disappear in airports and planes due to Judge Mizelle's opinion, and for this same reason they stop wearing masks, which means the reason they wore masks in the first place was because a federal judge had not yet lifted the requirement. Sounds like you agree with me that the professed belief that masks are useful doesn't quite line up with their actions.

      2. David, I'd say it is the same in my area of the People's Republic of NJ; roughly 10% to 20% wear masks indoors. I see very few people wearing masks outdoors (when I see that, I just assume immune-compromised).

        1. Or lazy. If I'm riding NJT back from the city, I have to wear a mask. (Well, I did until now!) Sometimes when I get off the train it's just easier to leave it on until I get home.

      3. " I don't know where you live — maybe in OANistan or something. "

        Most of the fans of this white, male, right-wing blog can be expected to reside among the depleted human residue that remains in our desolate backwaters after generations on the wrong end of bright flight.

        Knock, knock.

        Who's there?

        Not OAN. Not on mainstream television anymore.

    2. Are you now making an argument ad popularum? Based on 'no one I know approves of this thing, and that counts as everyone!'

      Unless you're trying out for a position as a blowhard, I don't think this is going to get you anywhere.

      1. No. I'm speculating as to what might explain people with a professed belief that mask wearing is of great utility, but who later stopped wearing masks when not required.

        1. The stories of entire plane loads of people immediately ditching their masks corresponds with my experience. There are vanishingly few people who continue to wear masks after a requirement is lifted. WHY? Where are all the mask believers?

          Your speculation is that people advocating for masks are hypocrites, based on your personal observations.

          I guess that's not quite ad popularum, but it is still awful reasoning.

          1. I guess that's not quite ad popularum, but it is still awful reasoning.

            And by "not quite" you mean "not even remotely near the same conceptual neighborhood".

            I repeat: You're more full of shit than the only port-a-potty at a week-long 4-alarm chili cookoff.

          2. ML getting wrecked up and down this thread is what I came to see.

            1. "I obviously don't understand your argument, but it is still awful reasoning."

              Wrecked!

          3. So what do you think explains people who profess a belief that masks are of great utility, but then immediately stop wearing them when a requirement is arbitrarily lifted?

            The idea that humans have a tendency to establish and embrace centralized autocratic authority is hardly outlandish. It is supported by all of human history.

      2. Are you now making an argument ad popularum? Based on 'no one I know approves of this thing, and that counts as everyone!'

        A riddle...

        Q: How do you know Sarcastr0 is making a pathetic and dishonest straw man argument?

        A: He's talking/typing.

    3. "Where are all the mask believers?" They're all on Twitter.

    4. There are other possible explanations for why former mask-wearers are ditching them now. For one, they could just be thinking that mask wearing is only useful if enough other people are doing it. If 90 people are standing one one side of the boat and only 10 are on the other, being number 11 is pretty useless.

      1. For one, they could just be thinking that mask wearing is only useful if enough other people are doing it. If 90 people are standing one one side of the boat and only 10 are on the other, being number 11 is pretty useless.

        Then they're idiots, as that's an utterly braindead analogy. The boat will capsize if the weight distribution imbalance crosses a critical threshold. It's not a probability game. If you accept that wearing a mask can reduce the probability of an infected individual spreading the infection to one or more other individuals, then their wearing a mask contributes to a reduction in the probability of spreading of that infection, however small, even if the majority of individuals choose not to wear masks.

      2. I agree there are other possible explanations. But none of them make much sense as far as I can tell.

  23. It's nice to see that some people still think that the law has any relevance whatsoever to COVID policy ... I only wish they were so ardent two years ago when we started this process.

    1. Disagreeing with you is not the same as discarding the law.

  24. The judge wrote:
    "Such a reading renders most of the second sentence mere surplusage, an untenable result when other interpretations are available."
    That reading is certainly incorrect within the common usage of many in the health and safety professions.
    For example, an infestation has nothing to do with dirt or lack of cleanliness. Rather it refers to the fact that an object is a host to other organisms. Fumigation is one means of ridding the objects of the infestation. Disinfection generally refer to the neutralization of microscopic contaminants such a bacteria or viruses or othe microbes.The object may still remain unclean. Sanitation in this technical sense may as well refer to mean of maintaining the object uncontaminated or clean, or it may refer to removing contaminants or potential contaminants. Both senses are in common usage.
    The judge has chosen to ignore the usage in the context which ist is most meaningful, i.e., to the professionals whose job is to assure the safe state of the object. Instead she has chosen to choose a layman's understanding that gets her to what seems to be a pre-desired outcome.

    1. The judge is a result-driven, obsolete ideologue -- which is why Republicans chose her and knuckle-draggers adore her.

  25. I'm more sympathetic to mask mandates that most folks on this board (including whichever Ilya wrote this), but this judge's interpretation of "sanitation" seems like a straightforward and persuasive application of the noscitur a sociis canon. All the other activities in the 264(a) list ("inspection, fumigation, disinfection, ..., pest extermination, destruction of animals or articles found to be [] infected or contaminated") have to do with identifying and mitigating disease vectors, so the "narrow" understanding of "sanitation" seems right.
    But that's not the end of the story. There's still the "other measures." And I don't think there would be anything wrong with the CDC hanging this regulation on that hook--unlike the eviction moratorium. If one believes that masks are effective at mitigating Covid spread (and, pace the comments, that's absolutely true and at least supported by the APA standard of "substantial evidence"), then a mask mandate bears directly on preventing the spread of communicable diseases in airplanes and airports, where a few transmission incidents can accelerate transmission across communities. The mask mandate is, if not quite "sanitation", then at least "sanitation-adjacent." Just like the defacation example. By contrast, the eviction moratorium RIP had such an attenuated relation to spreading disease across state lines as to be almost silly. (Almost as silly as Judge Mizelle's "conditional release" holding!)
    Another distinction is that the eviction moratorium looked a lot like a general federal power to regulate health and welfare. By contrast, a regulation on the instrumentalities of interstate commerce is pretty square in the middle of federal commerce power (like in the "even Clarence Thomas would agree" middle).

  26. Yet, I think, most ordinary people - both today and in 1944 - would agree that a ban on defecating on the floor qualifies as a "sanitation" policy.

    That's not my intuition at all. Cleanliness, public health, disease avoidance? Sure. Sanitation? No.

    1. First sentence of Wikipedia's entry on Sanitation:

      Sanitation refers to public health conditions related to clean drinking water and treatment and disposal of human excreta and sewage.

      Of course, Wikipedia is not an authoritative source or anything — but on a non-controversial subject, it provides a pretty good sense of how people think of a concept.

      1. That reflects a particular bureaucratic usage in the context of things like sanitation departments, which don't clean air. It's roughly the municipal usage that says sanitation refers to clean pipes and dirty pipes.

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