Old and busted: Conservative outrage over federal judges in Hawaii imposing nationwide injunctions on regulatory changes. New hotness: Progressive outrage over federal judges in Florida doing the same thing. [See update below.] A federal judge has ended the federal mask mandate on transit, including airlines, ruling that the White House and the CDC overstepped their authority:
A federal judge in Florida struck down on Monday the Biden administration’s mask mandate for airplanes and other public transport methods.
US District Judge Kathryn Kimball Mizelle said the mandate was unlawful because it exceeded the statutory authority of the US Centers for Disease Control and Prevention and because its implementation violated administrative law.
The ruling can be found here. It’s a summary judgment based on failures to abide by the Administrative Procedure Act (APA), an ever-popular resort for lawsuits against regulation. Judge Mizelle also ruled, however, that the CDC lacks the statutory authority to impose such conditions, even by suggestion, a ruling that likely will sound familiar to anyone who followed the Supreme Court’s handling of the eviction-moratoria challenges.
In fact, Mizelle makes specific mention of the eviction moratoria in a broad rebuke of the CDC. It also notes the CDC’s loss on shutting down the cruise-ship industry, with the transit mandate the last remaining issue facing courts. Their enabling statute authorizes the CDC to order “sanitation,” but that is reserved for active “cleaning measures,” not mandates on personal behavior. “Wearing a mask cleans nothing,” Mizelle writes, and that sanitation refers to changing the status of an object in public areas rather than preserving it. The word also applies to public property rather than individuals, Mizelle points out. Furthermore, while the CDC definitely has statutory authority to prevent entry of people to the US in regard to concerns over infectious diseases, they have none when it comes to Americans moving about within the country.
That is an important distinction, especially when it comes to the impulse that is well observed already that the CDC and the Biden administration plan to maintain the status quo of public areas, ie masking, indefinitely.
Will the Biden administration appeal this ruling? Probably, but they’d be well advised to skip it. Mask mandates have become a political millstone around the necks of Democrats already. This gives the White House a very convenient exit from endless loops of low-risk-tolerance extensions. Mostly, though, the Supreme Court has already plowed most of the ground Mizelle does here in recognizing the limits of the CDC’s authority. Why fight it and fail at the precise moment when it’s better to just admit that the time for such measures has passed anyway?
Which brings us to another question: Whatever happened to that Beltway superspreader outbreak from Gridiron dinner?
Remember this outbreak of COVID-19 from a couple of weeks ago among America’s top-level gerontocracy? The traditional Gridiron Club dinner on April 2 turned into a superspreader event that infected a number of leading lawmakers and executive officials, including Nancy Pelosi and Merrick Garland. The spread of Omicron BA.2 was widely cited as evidence that the US had rolled back its interventions too quickly:
Two members of President Joe Biden’s Cabinet tested positive for Covid-19 on Wednesday, becoming some of the latest high-profile Washington figures to contract the virus in recent days.
Attorney General Merrick Garland and Commerce Secretary Gina Raimondo announced their positive diagnoses after having attended the elite Gridiron Club Dinner in Washington on Saturday. Other attendees, including first lady Jill Biden’s press secretary, Michael LaRosa; Vice President Kamala Harris’ communication director, Jamal Simmons; Texas Democratic Rep. Joaquin Castro; California Democratic Rep. Adam Schiff; Maine Republican Sen. Susan Collins; and the President’s sister, Valerie Biden Owens, have also announced positive tests.
The string of positive cases has turned attention in Washington to the Gridiron dinner, an event that brings together some of the city’s most prominent journalists, including from CNN, and the government officials they cover. Attendees had their vaccination status checked, but negative Covid-19 tests were not required to enter.
As of Thursday evening, 37 positive Covid-19 cases had been reported following Saturday’s dinner, according to a letter from the club to its members.
That number ticked upward to 72 of the 600 Gridiron guests within nine days of the event. That took place as positive tests rose in several states. Ars Technica noted that all of this probably missed the amplitude of an even larger wave thanks to a “severe” undercount:
So far, over 20 states and Washington, DC, are reporting upticks in cases over the past two weeks, and nearly 10 states are seeing an increase in hospitalizations, according to data tracking by The New York Times. Over half of the country’s wastewater sites monitoring for SARS-CoV-2 levels have also detected rises in the past two weeks, according to the Centers for Disease Control and Prevention. The monitoring is intended to act as an early warning signal for case surges.
Still, the undercount of COVID-19 cases is expected to be more severe now than ever during the pandemic. Testing generally misses a large chunk of infections. But testing for COVID-19 has fallen sharply since the BA.1 surge in January, which saw over 2 million tests per day at its peak. Average daily testing is now down to less than 600,000 per day and is on a downward trajectory, according to CDC data. Many people have opted to use at-home COVID-19 tests instead, the results of which are often not reported to health departments. Moreover, people who catch the virus and experience only mild or asymptomatic cases—particularly those who are vaccinated and boosted—may not get tested at all.
In the first half of the month, this episode got used to argue not just for a continuation of the mask mandates for transit systems, but for a reintroduction of even more intrusive interventions. The outbreak showed just how dangerous unfettered access to social interaction could be, or so the argument went … then.
Sixteen days later, Washington Post reporter David Weigel wonders what happened to the story. Or, for that matter, the major public crisis that COVID hawks assumed would follow:
Positive covid tests of vaccinated people keep becoming BIG SCREAMING HEADLINES even when those people are fine. The elderly speaker of the House tested positive! Remember that? Yeah, she's fine.
— David Weigel (@daveweigel) April 18, 2022
No one died; no one got hospitalized; and insofar as anyone has ever reported, none of them got seriously symptomatic either. Cases in Washington DC have gone up, but correlated deaths (still not causative reports yet) have barely budged and are at 0.08 per 100K, according to CDC data presented by the New York Times. Nationwide, cases are flat over the last month and correlative deaths are still declining. Hospital admissions (also correlative) have dropped by 7% over the last seven days of the supposed Omicron BA.2 wave.
It’s over. Or at the very least, it’s endemic … which is functionally the same thing when it comes to extraordinary government interventions.
Update: Just to be clear, Judge Mizelle didn’t issue an injunction, because one was not required. The APA provides for federal judges to set aside rules that violate their provisions, which is what the the judge did here. She also struck down the mask mandate on other grounds, but a formal injunction wasn’t necessary and wasn’t issued. Big thanks to my Twitter pal Brant Hadaway for the explanation, who was lead counsel for the plaintiffs in this case.
Hi Ed. This is my case. She didn't enter an injunction, but simply granted the relief provided under the APA for invalidating an agency rule.
— Brant Hadaway (@dronelawdotcom) April 18, 2022