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More on the Transportation Mask Mandate Litigation

Some implications of the government's decision not to seek a stay of the district court ruling. Plus, the low quality of the trial judge's opinion doesn't necessarily mean there are no good arguments against the mandate's legality.

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Last Monday's US district court ruling against the legality of the CDC transportation mask mandate has transformed air travel in the United States, allowing passengers and crew to fly maskless for the first time in many months. While many (myself included!) were happy to be free of masks, it is also true Judge Kathryn Kimball Mizelle's opinion has serious flaws. It was widely panned by commentators, including some (myself again included) who are on the political right, oppose the mask mandate policy, or both. Other examples of such critics include Andrew McCarthy of the National Review, and David French and Sarah Isgur of The Dispatch.

I continue to believe that Judge Mizelle got a lot wrong. But it is important to emphasize there are also some flaws in the administration's position. Appellate judges on the US Court of Appeals for the Eleventh Circuit could still eventually rule against the government. If they do so, that might well be a defensible ruling, so long as they avoid endorsing Mizelle's more dubious claims.

It's important to remember that the Eleventh Circuit's job is not to grade the lower-court judge's performance, but to assess the legal case against the mask mandate. If even one of the arguments against the latter holds, they must rule in favor of the plaintiffs challenging the policy - even if they also conclude (correctly!) that Judge Mizelle made many mistakes in her analysis of other issues in the case.

One development that casts the government's position in a bad light is the Biden administration's apparent decision not to seek a stay of the district court's ruling. The Justice Department has appealed the district court decision. But they have not asked the Eleventh Circuit to issue a stay until the the appellate panel can reach a final decision. As a result, the district court ruling will remain in effect until the Eleventh Circuit resolves the case - which could easily take weeks or even months.

If the administration truly believes the mask mandate is an essential public health measure that saves large numbers of people from death or serious illness, one would expect them to seek a stay! Failure to do so is a sign they may not actually have much faith in the official rationale for the mask mandate policy.

Experts sympathetic to the mask mandate policy conjecture that the decision against seeking a stay indicates the administration does not actually care about perpetuating the mask mandate, but is only appealing to preserve the power of the Centers for Disease Control (CDC) for the future:

Does the Biden administration really want and intend to fight for a higher court reversal of the ruling this week striking down its mask mandate on airplanes, trains and other public transportation — as its high-profile appeal of the case seemed to suggest?

Legal specialists raised another possibility: The administration may instead be buying time and thinking about trying to erase the ruling — a move that would allow it to protect the powers of the Centers for Disease Control and Prevention to respond to a future crisis — but without reviving a mask mandate.

The tell, several outside specialists said, was that the Biden administration was letting days pass without seeking a stay of the ruling, the step that could most immediately resurrect the mask requirement.

"Basically, it is giving up on the mask mandate," said Lawrence O. Gostin, a Georgetown University professor of global health law who advised the White House on the case. "The administration's goal is a legal principle, which is to ensure that the C.D.C. has strong public health powers to fight Covid and to fight future pandemics. And it appears much less important to them to quickly reinstate the mask mandate…"

If the government really wanted to fight its appeal all the way to a decision on whether to overturn Judge Mizelle, said Stephen I. Vladeck, a University of Texas at Austin law professor who specializes in federal courts, "then they totally botched this, because it's Thursday and the ruling was on Monday and they haven't done anything about it yet."

But Mr. Vladeck contended that the failure to seek a stay may make sense if the Biden legal team was instead trying to protect the C.D.C.'s power with no real intention of trying to get a higher court to reinstate the mask mandate.

He pointed to an obscure legal doctrine under which if a case is on appeal when the dispute becomes moot for reasons unrelated to the litigation, an appeals court can remand it to the district court with instructions not only to dismiss the case but to vacate the district court's ruling — meaning wipe it from the books.

The government, he said, may be giving itself that option after the mandate's planned expiration on May 3.

If Gostin and Vladeck are right, CDC public health policy seems increasingly untrustworthy. In previous posts on the mask mandate policy (see here and here), I noted the serious weaknesses in the case for the transportation mask mandate, and linked it to previous instances where CDC policy seems driven by political pressure from rather than by "following the science." But more damning than the skepticism of outside critics like myself is this apparent indication that even the Biden administration doesn't really believe the transportation mask mandate is necessary, and therefore isn't actually trying to get it reinstated as soon as possible.

At the very least, this state of affairs weakens arguments that the CDC deserves special judicial deference to its supposedly apolitical expertise on pandemic-related policy. In reality, agency policy seems heavily politicized.

One can defend the administration and the CDC on the grounds that, while the legal and policy case for the mask mandate is strong, conservative appellate judges on the Eleventh Circuit are likely to uphold Judge Mizelle's decision anyway, because of their supposed bias against public health measures.

This overlooks the reality that conservative judges - including those on the Supreme Court - have voted to uphold many Covid-era public-health measures that have stronger legal support. Notable examples include recent Supreme Court decisions upholding the Biden administration vaccination mandates for health care workers and for members of the armed forces.

The implicit prediction that any appellate ruling against the transportation mask mandate would necessarily be a result of incompetence or bias is also wrong because of factors specific to this case.

Recall that Judge Mizelle's ruling against the mask mandate was based on 3 justifications: 1) that the policy exceeded the agency's powers under 42 U.S.C. Section 264(a), 2) that the CDC violated the Administrative Procedure Act (APA) by failing to go through the notice and comment rule-making process, and 3) the policy was so irrational as to be "arbitrary and capricious."The plaintiffs challenging the mandate need only prevail on one of these three issues to win the case.

I think Judge Mizelle is pretty obviously wrong about the third issue. While the transportation mask-mandate policy is badly flawed, it is not so completely ridiculous as to be "arbitrary and capricious." By contrast, as I noted in my earlier post, there is a very plausible case that the CDC violated the APA. Even if the emergency nature of the situation justified bypassing notice-and-comment processes when the policy was first adopted in early 2021, there is much less excuse for continuing to circumvent normal procedure during the many months that have passed since then. Notice and comment requirements, it should be emphasized, are more than a mere technicality. They allow people affected by regulations to have some voice, and to influence the government to mitigate their burdens.

The issue of the CDC's authority under Section 264(a) is an intermediate case. The plaintiffs' argument here is weaker than on the APA, but not as weak as on the "arbitrary and capricious" standard.

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

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]

The government argues that the transportation mask-mandate qualifies as a "sanitation" measure under the terms of the statute. For reasons outlined in my earlier post, Judge Mizelle's definition of "sanitation" as limited to "a positive act to make a thing or place clean" doesn't make much sense. But I also emphasized that the definition of "sanitation" under the statute must be narrow enough to avoid making the other powers listed in Section 264(a) redundant. In addition, it must be narrow enough to avoid giving the CDC the power to restrict virtually any human activity that might potentially spread disease - which the Supreme Court (correctly) ruled is unacceptable for a wide range of reasons in the eviction moratorium case, which interpreted the very same law.

In my view, the most plausible definition of sanitation is likely to be one that avoids these two pitfalls, while also allowing the CDC to adopt a transportation mask mandate. But there could potentially be defensible options that exclude the mask mandate - ones more plausible that Judge Mizelle's weak theory.

Some commentators, including Andrew McCarthy, suggest that the mask mandate may be authorized by the very first sentence of Section 264(a), which gives the CDC the power 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." If so, the government need not rely on the word "sanitation" in the second sentence.

But if the first sentence is an independent grant of power, it would run afoul of the Supreme Court's ruling in the eviction moratorium case, which held that Section 264(a) cannot be interpreted to give CDC virtually unlimited authority to restrict or shut down nearly any human activity. After all, as I and other critics of the eviction moratorium repeatedly emphasized, almost any form of human interaction risks spreading communicable diseases in some way. Following the Court's reasoning in the eviction moratorium case, we should interpret the second sentence of Section 264(a) as setting out the types of regulations the CDC is allowed to enact in its efforts to pursue the public health objectives laid out in the first sentence.

There are some other issues in the case, which space constraints preclude me from covering here, most notably the question of whether Judge Mizelle was right to order a "nationwide" or "universal" remedy, as opposed to one limited to plaintiffs. But my tentative bottom-line conclusion is that the the case against the transportation-mask mandate is stronger than Judge Mizelle's badly flawed opinion makes it seem. On balance, I still think the government has the better-supported legal position. But a ruling against the mandate would be defensible, so long as it avoids the district court's particularly egregious errors.

NEXT: Ukraine and Double Standards on Refugees

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  1. I'm sure Dr. Fraudci is in agreement with you but most of are a glad to see this gone.

    1. I oppose mask mandates for Omicron but here is some data that shows masks mitigated spread:

      On January 17, 2021 NY had 41k Covid deaths (including 18.6k in NYC alone in March, April, May 2020) while Florida had 24k. Now Florida has 73.7k deaths while NY 67.5k deaths. Does that mean the Great Barrington Declaration has failed??

      And on that date Illinois had 20k deaths while Ohio had 10k deaths. Now both have around 38k. Why did Governor DeWine say this in September 2021, — “Ohio Gov. Mike DeWine on Tuesday said he would have issued a statewide mask mandate to slow spiking cases of the coronavirus if the Legislature hadn’t tied his hands through a strict restriction on public health orders.“??

      1. Hypocrisy and elitism. When know nothing judges reversed the Executive Orders of Donald Trump on immigration. There was no problem. Now the Ivy indoctrinated scumbags are personally attacking this hero judge. They mock her writing in sick ad hominem attacks. They call her national injunction over reach. Somin should be ashamed of himself.

        1. Sebastian Cremmington
          April.24.2022 at 10:06 pm
          "On January 17, 2021 NY had 41k Covid deaths (including 18.6k in NYC alone in March, April, May 2020) while Florida had 24k. Now Florida has 73.7k deaths while NY 67.5k deaths. Does that mean the Great Barrington Declaration has failed??"

          Sebastian - you have been told before -
          A) florida has 21.8m people vs NY 19m , population is about 10% and total covid deaths are about 10% higher
          B) the better metric to compare states is per capita deaths by age group - Florida has a much higher % of their population over age 65, and florida has a much lower total death rate by age group than NY - substantially lower.

      2. Invariably you are comparing apples to oranges. Any attempt you make to compare apples to apples can be countered by someone on the other side and justified by taking into account and controlling for different confounding variables.

        And, then, what did you get? Possibly a delay of Delta into Omicron,which, because of the latter’s slightly lower deadliness (but increased infectivity) might have saved a small number of lives. But the reality is that masking and vaxing was never going to prevent the virus from infecting the bulk of the population, but rather the timing of it.

    2. I see you didn't bother to read the post.

  2. "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."

    Considering that this came after the disease had already spread across the country, and you could have completely shut down every covered mode of transportation without materially effecting the pandemic, how was the mandate NOT "so irrational as to be "arbitrary and capricious.""? You can't "prevent" things that have already happened.

    1. Didn't Prof. Somin, in an earlier post, argue that immigration restrictions aimed at preventing introduction of COVID into the country were improper, because COVID had already been introduced?

      Some people have a "But Trump" button. Prof. Somin has a "But immigration restrictions" one.

    2. Brett,
      This a a BIG country with LOTS of people who had not been infected.
      Your argument here has more holes than a sieve.

      1. Yes, it's a big country, with a lot of people who had not been infected, living in areas the virus had already reached.

        Maybe more attention to local transmission, and less to keeping it out of places it had already reached, would have been in order.

        1. The virus is not infinitely transmissible; additional flux of virus has a local effect by any sane model.

          1. Yes, and since the mask mandate didn't do anything in that regard, what's your point?

            It was over-inclusive in the sense that it required masking by people who had no rational need to mask, (Such as the vaccinated, or otherwise immune.) and under-inclusive in the sense that permitted you to unmask for a multitude of reasons, and permitted the use of ineffectual masks that just signaled obedience without accomplishing anything.

            It was not a rationally constructed policy, it was medical theater. "Something must be done, and this is something!"

            1. First, this is a completely new thesis from your original: "Yes, it's a big country, with a lot of people who had not been infected, living in areas the virus had already reached."

              If masks do nothing, you'd never reach this issue.

              But you're also assuming that answer. As Don Nico, not exactly a big government liberal, has repeatedly noted across multiple threads, that's not in keeping with the research.
              It may end up being true, but it's not looking like that.

              And your objection about natural and vaccinated immunity has been exploded again and again - nothing has proven to be 100%, and layers of protection work independently.

              1. “… not in keeping with the research”

                Zatso? Just where is the research that shows the masks on airplanes are effective where many of the passengers are sitting maskless sitting shoulder to shoulder sloooooowly, sloooooowly eating snacks and drinking beverages?

                1. People break the laws, so why have laws at all, man?

                  1. The eaters and drinkers are not breaking laws or regulations. The masks are allowed to come off when eating and drinking.

              2. There are lots of "lab" studies showing that masks should work, but there zero emperical studies that show any differences in transmission rates in the real world - with the exception of several that the CDC has promoted which contain serious flaws.

                1. As I recall, this isn't true. But when that's pointed out to you, your goalposts become a level of data fidelity we're not going to get for some years yet.

                  1. Sarcastro - - my statement is correct - The only emperical studies showing reduction in transmission in the real world have serious flaws, most notably, two of the studies the CDC heavily promoted.

                    Let me know when you can point to any study that shows masks worked

          2. S_O,
            "virus is not infinitely transmissible"
            Whatever can you mean by that. People have gotten infected multiple times. Please explain.

      2. The law allows the CDC to prevent spread from state to state. Not from person to person within a state. That was Brett's point.

        1. Well, part of my point, anyway.

          My main point is that there were a lot of things you could have done after the virus was already widespread, that we didn't do. Preventing it from spreading into places it had already reached was, if not totally pointless, sufficiently ineffectual as to be irrational.

          1. Which also illustrated the idiocy of requiring negative COVID tests from American citizens to get back into the U.S.

          2. Brett,
            Yours is an assertion with no proof whatsoever. In fact, There is not the even the semblance of logic unless you are referring to places in which a vast majority have been infected.
            Just because someone was infected with the wild Wuhan strain, there is no reason to try to prevent subsequent infection with a more virulent strain such as delta

    3. Considering that this came after the disease had already spread across the country, and you could have completely shut down every covered mode of transportation without materially effecting the pandemic, how was the mandate NOT "so irrational as to be "arbitrary and capricious.""? You can't "prevent" things that have already happened.

      Do you see the words "introduction, transmission, or spread"? Do you see how those are not identical concepts? Do you see how your question is only about introduction?

  3. David French is not on the Right. He argues that child grooming is a “blessing of liberty”

    1. You really are an idiot.

      1. Idiot implies he's stupid. He may be, but this is more like evil than stupid.

  4. Just imagine what a Trump administration might do with broad-ranging CDC powers ...

    1. You don't need to imagine. The CDC eviction moratorium was a Trump Administration work-around when Congress didn't renew the original eviction moratorium.

  5. It may not be pretty but another consideration the administration no doubt has is the political impact of the policy. While I don't accept the ridiculously overbroad Trump assertion that it's acceptable for the president to trade official US government actions for run of the mill political dirt a president should believe their policies are better and thus can legitimately balance unpopular but beneficial programs against the harm imposed on the country by the increases risk the other guy will be elected.

    I mean, we could choose to elect uncompromising technocrats but we don't.

  6. I, for one, hope that this cynical, political ploy to rely on an "obscure legal doctrine" to keep the Establishment from having to defend its mask mandates on the merits falls flat on its face. A "Munsingwear vacatur", forsooth! Sounds like a brand of men's undergarments.

    1. I think the provision exists for a good reason if they can't defend the case on the merits once it's moot, they lose the opportunity to challenge the Judge's decision. Now if this is case falls under the exception to mootness for things capable of repetition yet evading review (or some other similar equitable doctrine), defense on the merits makes sense because the opinion is still very flawed and I suspect the CDC would want any court to repudiate its language.

  7. Every covid prevention measure has been attacked by the MAGA death cult (SCOTUS included). Now the mask mandate, which was only for federal transportation has been killed by a loony Trump judge. The CDC seems to be untrustworthy because the Republican media has been attacking it. At this point the best course of action is to preserve what is left of the ability for the federal government's ability to combat pandemics. We can't let the Trumpists leave us unable to respond to the next virus.

    1. Indeed ... the CDC has been doing a bang-up job of protecting Americans from COVID, and we should enshrine their hubris with unchecked power to continue killing Americans with their confidently projected ignorance.

    2. "Unable to respond to the next virus"??? You mean by Trump developing the only real "response", i.e. the Vaccines, which would still be waiting to get invented if Sleepy was in charge in 0-20' (you know the Scientists who develop Vaccines? most don't have Vaginas, which is a very important pre-requisite to Vaccine Development)
      seriously, Sleepy would be like "Sorry Jug-Dish-Bruce-Lee, you gotta have a Vagina (Man!) I don't care how low your "p" Value is, we need a Broad!!!!!!!!!!!!!"
      I fly alot, suddenly there's nobody wearing masks (OK, there's a few, you know, the Birkenstock wearing, Granola Guzzling, NRP donor T-shirt)
      and not much in the way of discord....

    3. "Now the mask mandate, which was only for federal transportation has been killed by a loony Trump judge."

      I hope the Biden surrogates keep saying this. Ending the mask mandate could have been a W for the Biden administration, but you guys insist on handing credit to Trump. And Biden didn't ask for a stay, so if it turns out to be a bad decision, he's handed his opponents a stick to beat him with.

    4. Molly,
      You may make some vaild arguements but your use of phrases such as "the MAGA death cult (SCOTUS included)" renders your comments ineffective and nearly useless.

      1. BTW, valid comments were absent in your present post.

      2. One must adapt to the vernacular of the locals. As Kirk said: “Well that's simply the way they talk here. Nobody pays any attention to you unless you swear every other word.”

        1. Yours is the vernacular of the fringe left not of the many Maga that comment here

    5. "The CDC seems to be untrustworthy because the Republican media has been attacking it."

      The CDC doesn't "seem" to be untrustworthy, they are untrustworthy.

      Did you expect to get good, reliable information from the CDC? You didn't get it. To this day, no one knows how to separate dying from COVID vs. with COVID. To this day, no one even knows where COVID came from.

      Did you expect to get trustworthy proof from the CDC of what works and what doesn't? You didn't get it. To this day, there have been NO quality studies done in the US on the efficacy of masks.

      Did you expect to attract trustworthy medical professionals at the CDC to step forward and put their reputations on the line based on their advice. You didn't get it. The honest medical professionals quit the CDC rather than sign their names to booster recommendations for children. The vaccines for very small children were even approved WITHOUT A SUCCESSFUL TRIAL! Who did you get instead of these professionals? You got politicians like Fauchi.

      Did you expect a truthful, open, and honest accounting of what the CDC and the rest of the federal government funded in the way of experiments on bat viruses? You didn't get it. You got lots and lots of shouting, but you didn't get an accounting. You got bald-faced denials which are contradicted by their own records.

      Honestly, I'm not being partisan here, but the CDC has been AWFUL. I literally shudder at the thought of what our country will become if we get more of the same from these people. They couldn't be fired soon enough, in my opinion.

      1. Let's not forget that they originally lied about the effectiveness of any masks on the grounds that they didn't want people buying them all up and leaving doctors with none.

        1. This is the one that does it for me: The deliberate lying about the masks. That lie likely killed Americans.

          1. The problem with this argument is that the same people making it are the ones claiming masks don't do anything!

            1. Either the CDC lied about masks being ineffective or they lied later when they claimed they were effective. Either way, this does not paint the CDC as honest.

              And no, there were not "later studies" or "changing science" that made them change their minds. Unless you can show these supposed studies that were uncited and no one else can find...?

  8. Seems like Prof. Somin agrees with the judge on at least two of her three points. Hardly the definition of badly flawed.

    I'm also not sure how anything less than a national injunction would have been practical. Relief for only the petitioners?

    1. And, Somin admitted that any one Of the three reasons given by the judge was sufficient.

      The APA violation was maybe the scariest of the three given. Much of the operation of the federal government utilizes APA Notice and Comment to generate the federal regulations that we live under. I learned this in LS over 30 years ago, and hasn’t changed much since then. All of a sudden, the government bureaucracy now tells us that they can cut this out, if they feel that it is an emergency. They admitted that there was no attempt made to engage in normal APA required Notice and Comment. But, thanks to Chevron Deference, we can trust them to make this decision. Ok, then what are the limitations on this vast enlargement of this emergency power? We are apparently left trusting the bureaucrats who used this to greatly increase their power, on their own say so. Did they try to justify this at the time? No, all they had was a single conclusory statement justifying the APA bypass. The judge contrasted this with a case where Medicare spent four pages justifying their actions. Did these bureaucrats take other actions that would have suggested that they took these Black Letter Admin Law requirements seriously, like issuing interim rules, and starting the Notice and Comment process? Nope. They acted like they believed that the APA didn’t apply to them. And the reason that the courts have to take this attack on the APA seriously, is that if they allow it this time, it will be that much easier the next time the bureaucrats intone the word “emergency”.

      What Somin isn’t about to admit is that the DOJ isn’t pushing this because they would lose at the appeals levels. Sure, maybe it is politics. But the Administration doesn’t get their renewed mask mandate without the Judiciary driving that bulldozer through the APA. And they aren’t going to do that here.

    2. The opinion is an outcome-oriented joke. I often think reasonable people can differ on a lot of things, but this was absolutely nonsense.

      Prof. Somin is having to replace a lot of her shoddy argumentation with his own analysis to come to his conclusions. Though he's equivocal on the CDC's scope as well, it looks like.

      1. The opinion is an outcome-oriented joke

        Oh, I didn't realize you wrote it.

        1. Yes, every outcome oriented thing in the world comes from me.

          That's such a tepid burn, lol.

          1. Yes, every outcome oriented thing in the world comes from me.

            Maybe not, but everything that comes from you is an outcome-oriented thing.

            1. Neato telepathy.

              1. Neato projection.

                1. ...Are you saying I have telepathy?

                  1. ...Are you saying that I do?

      2. Given Professor Somin’s gratuitous and patently partisan slurs against Judge Mizelle, one can only hope that he or his wife someday finds themselves in her court. Not in the hopes of retribution, but so that her professionalism and fairness shames Somin’s hack job.

        Judge Mizelle is, after all, only 33 years old and may very well be on the federal bench after both of the Somins are dead and buried.

        I would include the usual list of reflexively pro-government VC commenters in this wish, but we all know that none of them is a practicing lawyer.

        1. " is, after all, only 33 years old and may very well be"... too immature to be a Federal judge

  9. "Failure to do so is a sign they may not actually have much faith in the official rationale for the mask mandate policy."
    Not so much as the case load in the US remains low and the average Omicron infection is pretty mild. Right now government units in the US seem cintent to let the mask mandate expired or be ruled out and to depend on vaccines to control COVID-19 infections. But the recent experience of South Korea shows how flawed that approach is with daily rates of new infection at a level of 1% of the total Korean population.
    There is no reason to expect that mutations of Omicrom will be less evasive of vaccine induced immunity plus there is only hope that the virulence remains at the level of H1N1 influenza.
    I can see why the DOJ does not want to risk an adverse ruling.
    Given the sloppiness with which a large fraction of the US population uses masks, the only avenue of effective control is likely to be a new vaccine tailored to the evolved virus

    1. There are other potential avenues of control, such as widespread use of human safe UVC, putting the HEPA filters in HVAC instead of on people's faces, not ordering senior centers to take in carriers...

      It's not like face masks on public transport are our only option, and we're doomed if the CDC can't do so on an emergency basis without following the APA, and maybe getting some more on point legislation.

      1. The fact that they allow people to take them off to eat and drink shows that the whole rule was about tyrannical virtue signaling, and nothing more.

      2. You mention some useful measures, but not everyone can afford to install high capacity HEPA filters and ventilation in every business, not to mention the UVC.
        As for airplanes the HEPA filters and air changing work well when the doors are selaed, but don't function when the plane is loading and unloading and the viral load in the air is the highest.

  10. Fauci certainly took off his mask after the ruling:
    "Well, I clearly disagree, I mean those types of things should be decided as a public health issue by the public health organizations, in this case the CDC. This is a public health matter, not a judicial matter. So, obviously the CDC will abide by the order of the court because it’s a legal obligation...But one of the problems that we have there is that the principle of a court overruling a public health judgment by a qualified organization like the CDC is disturbing in the precedent in might send."

    I can see the FBI and CIA nodding their heads that the courts shouldn't have the power to overrule "qualified organizations" on questions of national security either.

    I'm sure a lot churches and environmental groups are ready to also assert their qualifications when it comes to deciding moral or environmental issues they think are too important for judges to get involved in.

    1. I mean, isn't that just Chevron?

      1. Chevron at least said "you only have to trust us when what Congress said was ambiguous". Fauci's argument is that "you have to trust us even when Congress said nothing of the sort".

        But, yeah, this is a logical extension of the principle behind Chevron - and it's an illustration of why Chevron was such a bad decision.

        1. That's begging the question re: ambiguity.

  11. There are various administrative law doctrines that allow judges to hoist the government on its own lawyers' petard, but I am unaware of any rule that states that a failure to pursue a particular procedural remedy (i.e., a stay of a district court ruling pending appeal) can itself count against an agency's assertion of legal authority.

    It's certainly a relevant observation, speaking just casually, that the Biden administration isn't bothering to seek such a stay. I agree that it undermines the scientific case for the mask mandate that the CDC needs to make, in court. But I'm not sure that the 11th Circuit would be able to cite the CDC's legal strategy as a reason to toss the mandate.

    Similarly, I am a bit perplexed by the APA argument here. Without having reviewed the CDC release itself, I find Mizelle's argument that the emergency exception from notice-and-comment rulemaking was not sufficiently invoked by the CDC persuasive. If the CDC really didn't justify the need for emergency rulemaking at the time the rule was promulgated (as Mizelle concludes), then the exception from notice-and-comment rulemaking that the CDC invoked wouldn't apply.

    In contrast, I'm not aware of any APA requirement or administrative law interpretation that requires an agency to come back and "show its work" after an emergency rule is properly promulgated. To be sure, agencies often do this - sometimes, to make an "interim" rule permanent, to extend a rule that was initially promulgated with a sunset provision, etc. But a rule being in place for several months after being adopted on an emergency basis doesn't somehow re-establish the need to go back through notice-and-comment rulemaking.

    Finally - I am not familiar with the CDC's argument on the meaning of the term "sanitation," but surely it shouldn't be too hard to come up with a definition, centered on the concept of "cleanliness," that can reach human activity that can tend to contaminate surfaces and air. We wear hair nets in food service, for instance, to prevent hair from falling in food, and I don't think it's too contentious to say that is a "sanitation" measure, even if it doesn't involve "cleaning" the food directly. Right?

    Start with the purpose of preventing the transmission of communicable disease; acknowledge that such transmission can occur through the "contamination" of air and spaces; provide that "sanitation" measures are those that would tend to prevent, mitigate, or ameliorate such "contamination"; infer that broad-based mask mandates are reasonably designed to further that kind of "sanitation." Boom, you're done.

    1. If current law doesn't obligate an agency to follow up any rule instituted with emergency powers with a rule promulgated under regular order should sunset within 90-180 days.

      Where a rule might be permitted during an emergency, emergencies don't last forever, eventually they become the status quo.

      We were 2 years into the pandemic when this emergency regulation was struck.

    2. “ Similarly, I am a bit perplexed by the APA argument here. Without having reviewed the CDC release itself, I find Mizelle's argument that the emergency exception from notice-and-comment rulemaking was not sufficiently invoked by the CDC persuasive. If the CDC really didn't justify the need for emergency rulemaking at the time the rule was promulgated (as Mizelle concludes), then the exception from notice-and-comment rulemaking that the CDC invoked wouldn't apply.”

      That’s just it - the CDC didn’t bother at the time to show their work, to justify their emergency exception to the APA. So the court agreed with you - if they didn’t justify this exception, they couldn’t use it. All that they did at the time was to include a single conclusory statement. The judge cited to what she thought might have been sufficient: a four page justification by Medicare.

      “In contrast, I'm not aware of any APA requirement or administrative law interpretation that requires an agency to come back and "show its work" after an emergency rule is properly promulgated. To be sure, agencies often do this - sometimes, to make an "interim" rule permanent, to extend a rule that was initially promulgated with a sunset provision, etc. But a rule being in place for several months after being adopted on an emergency basis doesn't somehow re-establish the need to go back through notice-and-comment rulemaking.”

      But that was the thing - the rulemaking was not properly promulgated. There was no Notice, and no corresponding Comment period. None. Zip. Zero. Nada. Above, I used the analogy of the emergency provisions here, if sustained in use, to be the equivalent of driving a bulldozer through the APA. Henceforth, whenever any agency doesn’t want to wade through mountains of comments (like they did with the ACA), they could just declare an emergency and be done with it. That is why the court was right to put the burden of proving that a state of emergency justified bypassing Notice and Comment on the agency, and they didn’t bother. They just waved their hands, and intoned “emergency” a single time.

      “ Start with the purpose of preventing the transmission of communicable disease; acknowledge that such transmission can occur through the "contamination" of air and spaces; provide that "sanitation" measures are those that would tend to prevent, mitigate, or ameliorate such "contamination"; infer that broad-based mask mandates are reasonably designed to further that kind of "sanitation." Boom, you're done.”

      Of course, they could prove no such thing. They were never able to show that masks prevented infection - because we know that they don’t. They may reduce it somewhat, esp with symptomatic carriers - but if they are symptomatic, they shouldn’t be traveling in the first place. Presymptomatic and asymptomatic carriers spread the virus primarily as aerosols, which even the better masks in use don’t do much to slow down (and the worst ones, the neck gators, hand made masks, etc near worthless in this regard). Maybe more importantly though, the rule was far too broad. It required masks when there was a single driver and passenger, even if both had natural immunities. And it required masking on flights where air is turned over far quicker than in almost any building.

      1. A very interesting thread. We don't know if the government "couldn't" prove that masks prevented infection, but we do know that they didn't even try. Two years on, and there was not a single quality study done on masking in the US -- or on any other non-medical intervention, for that matter. It was all just made up and done on their say-so.

        1. Actually there are numerous studies on the effectiveness of masking

          All the pre covid studies on masking showed very little if any benefit.

          The studies of masking effectiveness with covid fell into two buckets, - ones that showed no effect and ones that showed a positive effect which were often so deeply flawed that they would not even have gotten to peer review much less passed peer review.

          1. If you look at how people wore their mask with the frequents ups, downs, under the nose, under the chin, no wonder it seems like masks are ineffective. I dare say that the studies that showed no benefit in actual use also had poor controls, etc.
            But the filtration capability is well known for high quality respirators. They are used in the building trade everyday because they are effective.

      2. That’s just it - the CDC didn’t bother at the time to show their work,...

        As I think I said, I find this argument generally persuasive.

        My point, in response to Ilya, was to say that his point, about there being adequate opportunity since the rule was promulgated to engage in notice-and-comment rulemaking, doesn't seem to be relevant. If the emergency authority were properly invoked (conceding that it likely wasn't here), then there's no apparent requirement that the agency come back and bolster its case.

        Of course, they could prove no such thing.

        I mean, okay. Agencies are prohibited from acting arbitrarily and capriciously, so they can't adopt rules that are without evidentiary support or some rational relationship to their statutory purpose. But agencies also aren't required to engage in "narrow tailoring." Presumably, if any standard were to apply to the breadth of a mask mandate, it would be a cost-benefit analysis, where the potential costs and benefits of a putatively "over-broad" rule would have to be weighed against the costs and benefits of a less broad rule, or one with more exceptions.

        I mean, I appreciate the point - it doesn't make sense to require single drivers to wear masks, it may not make much sense to require masking in airplanes while they are in flight, a rule that permits face coverings with negligible if any effect on transmission doesn't seem to be suited to purpose, etc. I personally believe that the COVID warriors have massively over-sold the empirical case for masks. But nit-picking like this doesn't necessarily result in invalidation of the rule. An agency might make the case that a broad, easy-to-apply rule would result in better mitigation overall than one that requires a higher mask standard and includes a lot of situation-based exceptions (e.g., N95 masks required within airports and on airplanes when the engines are not turning over the air, masks no longer required after a certain number of minutes of air circulation within airplanes, etc.).

        1. The judge though essentially refused to let the government come back and bolster their case two years down the road. Her view was that they needed to have done that up front, and not when they are caught out not having done so. I could go either way there, but think that her no do-over ruling may be better long run for this branch of Law. It’s not like it would have been hard to justify - she pointed to the sort of justification she liked in a Medicare case. It’s just that the CDC didn’t bother for their masking mandate.

          I don’t think that the CDC could have proven the effectiveness of a masking mandate by a preponderance of the evidence, in a fully advocated proceeding, because I don’t believe the science has ever been there. But that isn’t the standard that they would be held to. I don’t think that they had to have been correct - just reasonable, which, they probably could have done back 2 years ago when they were promulgating these mandates. Chevron Deference, etc, would have done the rest.

  12. I no longer think national government public health policy, or as far as I can see, any state's public health policy, will be decided on any basis but politics. Politicians throughout the nation appear to think it too politically costly to use public health policy during this pandemic.

    Politicians know a notable majority in almost any polity will judge itself reasonably safe against death by Covid. Politicians know a notable minority will oppose to the point of violence any attempt to protect the public at large, if it imposes even trivial inconvenience on members of that minority. Some especially-ideological political minorities oppose public health policy on no better basis than individualist monomania.

    Thus, politicians, almost to a person, will do little or nothing to protect those who remain at risk of dying. Most of those at highest risk are members of a greatly outnumbered and typically docile minority.

    Had Covid been a disease which affected on a basis of mutual deadly severity a large majority, the political situation might be different. It could be—given the moral weakness apparently inherent in America's political process—that it seems principled and wise to act now with an eye to protect future public health policy for emergency use, especially in the event of a more-comprehensively deadly future pandemic.

    If that is the route the nation plans to travel, it will be reprehensible if politically opportunistic address of the larger present issue translates into comprehensive neglect of the notable minority who remain at deadly risk. There should be budget to provide help to those who will be left on their own to take their chances. They need far more than the kiss-off advice, "Speak to your doctor."

    Those at continuing risk of dying need access to unlimited free testing. They need free N-95 masks, with a new mask available for every trip in public. They need reliable priority to get pharmaceutical anti-virals without cost. They should be provided with economically effective and convenient ways to meet their fundamental needs for food, clothing, shelter, health care, transportation, and utility payments.

    If those at high risk cannot expose themselves to public-facing employment, and have no other, they need supplemental income. They need money contributed toward their retirement if they have lost Social Security wage deductions because of the pandemic.

    The larger society has elected laissez faire policy on Covid management as an easeful political convenience. The larger society should bear the expense of that—particularly the expense to provide help against the life-crippling effects such demands for convenience-policy otherwise will inflict on an identifiable minority who are not at fault.

    And by the way, do not expect a return to economic normalcy ever, until Covid disappears on its own. News reports today said only 40% of Manhattan workers have returned to business offices. The economic implications of that for many other Manhattan businesses ought to be obvious. Economic friction will continue throughout the national economy, and exert a perpetual drag unless or until the Covid pandemic disappears on its own.

    The politicians' policy has been stupid and sub-optimal throughout the pandemic. The nation now surrenders to that as its expectation, because a weak political system can manage nothing better.

    1. "Politicians know a notable minority will oppose to the point of violence any attempt to protect the public at large,"

      I was abroad for about 1/4 of the pandemic, I must have missed all the covid riots here, although I did see a few in Australia and Europe, and there maybe another one in Shanghai soon.

      "The nation now surrenders to that as its expectation, because a weak political system can manage nothing better"

      Limited government requiring the consent of the governed has always been a feature in the US system. And considering the tenuous hold either party seems to have on power from election to election, I don't think anyone wants a dictatorship of the 50+1.

    2. "And by the way, do not expect a return to economic normalcy ever, until Covid disappears on its own."

      You realize that it's endemic now, right? It's never going to disappear.

      As usual, the more you write, the less you actually have to say.

      1. ' it's endemic now, right? "
        Not so fast Michael. There is very far from a consensus of virologists and immunologists on that claim. That the evolution of SARS-CoV-2 is at the endpoint of virulence is wishful thinking with no substantial (at the >3 sigma level) evidence

    3. Great Scott, you speak as if people can't take care of themselves, that without "government public health policy" there won't be any health at all!

      What does it mean to even be a responsible adult in your worldview? Have people no agency, no free will? If you need a mask, go get one, no one is stopping you. The government isn't responsible for getting one for you -- unless you are incapacitated, but only then as a last resort, after you've exhausted your personal sources of help.

      The government isn't some benevolent provider, it's a freaking bureaucracy 100% supported by the private sector. You've not only got the cart before the horse, you've got it turned backwards as well.

  13. "He pointed to an obscure legal doctrine under which if a case is on appeal when the dispute becomes moot for reasons unrelated to the litigation, an appeals court can remand it to the district court with instructions not only to dismiss the case but to vacate the district court's ruling — meaning wipe it from the books.

    The government, he said, may be giving itself that option after the mandate's planned expiration on May 3."

    IIUC the Munsingwear doctrine applies when mootness occurs by happenstance, and voluntary cessation of an activity will not normally moot a case. However, it's an open question as to what extent that principle applies to governments.

    The 11CA declined, in 2013, to moot a case because the cessation was ambiguous. It sounds like the expiration of the mandate would be similarly ambiguous.

  14. Ilya claims to be opposed to Covid mandates (except for the jab of course!) but cannot help himself from bitching and moaning over the "poor quality" of legal reasoning in most every decision that strikes one down. One gets the impression that Mr. Somin would prefer everyone to suffer under illegalities indefinitely so long as the reasoning on which they would be vacated is not to his liking. Whatever happened to "turnabout is fair play"? What of the reasoning on which this idiocy was imposed in the first place? I have yet to see Ilya play Monday-morning quarterback with a tenth the enthusiasm on that side of the field.

    1. One gets the impression that Mr. Somin would prefer everyone to suffer under illegalities indefinitely so long as the reasoning on which they would be vacated is not to his liking.

      In fact, criticizing opinions for bad reasoning even if you agree in the result is a sign of integrity, not of a secret agenda.

      Whatever happened to "turnabout is fair play"?
      It sucks, is what happened. Justifying your own bad behavior by your demonization of the other side is how you get to ignore your own morality.

      1. >In fact, criticizing opinions for bad reasoning even if you agree in the result is a sign of integrity, not of a secret agenda.

        Not when it's all you ever do, no.

        >It sucks, is what happened. Justifying your own bad behavior by your demonization of the other side is how you get to ignore your own morality.

        It's not demonization if it's true.

    2. YUP! He's wrong of course. Judge Mizelle's opinion is excellent and without flows. She really nails the problem with relying on "sanitation", and Ilya's hand waving away the problem is silly. And of course not to mention the massive problems with the APA process.

      1. UGH of course MY typing is not without FLAWS, but her opinion is definitely without FLAWS.

        1. I'm pretty sure that "Sanitation can't be interpreted to mean the ordinary meaning of the word because then it would allow something I don't like" is not flawless analysis.

  15. "it is not so completely ridiculous as to be "arbitrary and capricious."

    Except it is. CDC changed their guidance so that masks aren't even recommended in much of the country at the moment. Except when you step on to a subway, bus, or in airport. How does that make sense? That I need to, for matters of public health, wear a mask while riding the subway to and from Madison square garden but not in it surround by screaming fans? What science supports that?

  16. But if the first sentence is an independent grant of power, it would run afoul of the Supreme Court's ruling in the eviction case, which held that Section 264(a) cannot be interpreted to give CDC virtually unlimited authority to restrict or shut down nearly any human activity. After all, as I and other critics of the eviction moratorium repeatedly emphasized, almost any form of human interaction risks spreading communicable diseases in some way.

    Actually, for the purpose of the eviction moratorium I think the important part of that first sentence is "from foreign countries into the States or possessions, or from one State or possession into any other State or possession.".

    The eviction moratorium does not meet that foreign/interstate requirement.

    1. Of course not, but following the logic from the federal courts, that the arson fire of any rental building affects interstate commerce, and thus can be prospected in the federal system, their eviction argument doesn't sound too far fetched.

      1. Just because there are a lot of stupid doctrines out there motivated by a desire to not enforce limits on the reach of federal power, doesn't mean we're obligated to add more. We should actually be going in the opposite direction, overturning bogus excuses for federal authority.

        1. Don't get me wrong, I agree on that. The problem is that there is so much bad precedent out there that the only way to get anywhere is to attack the precedent as wrong.

        2. The commerce clause is not unlimited in federal courts. You need a federal nexus in your law's purpose since 2000. Shootings and violence against women aren't enough.

          Quarantines are almost certainly contemplated in the enabling statute, which are an inhibition of almost all human activity. (I do think the eviction moratorium seems beyond the scope).

          1. Lopez and Morrison were exceptions, not the rules. The courts have basically treated the commerce clause as unlimited.

          2. "Quarantines are almost certainly contemplated in the enabling statute,"

            Quarantines normally apply to specific individuals. I rather doubt the statute explicitly contemplated a total quarantine of the general population.

            1. I agree, but the CDC also hasn't attempted that.

      2. I don't think the commerce clause criminal jurisdiction argument is relevant here because the statute directly has it's own foreign/interstate limitation.

  17. I think the question is not whether there were valid reasons for the mask mandate but whether those reasons remain valid. The expiration at the 15th strikes me as a conclusion that the CDC believed the mandate was outliving its usefulness. If that is, in fact the case, the decision not to seek a stay seems consistent with that belief - if the stay is for such a short period of time anyway).

    Now, logically, that means that the mandate shouldn't have been allowed to live out its remaining time before the deadline anyway, but I suspect it's fairly routine for temporary administrative rules to not get renewed rather than repealed when there's such a short time period in question.

    All that being said, I've assumed they'll ask to remand and vacate from the beginning once the case becomes moot.

  18. Wait. The remedy should have been limited to the plaintiffs, and not against the mask mandate at large?

    wtf

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