Didn’t the ruling from Judge Kathryn Kimball Mizelle settle the issue of CDC authority? And if the risk here isn’t “immediate” to “public health,” then why did the CDC keep the mask mandate in place at all? Normally Scott Gottlieb is a voice of reason on COVID-19 and countermeasures, but in this clip Gottlieb misses the forest for the trees:
"The risks here from this ruling aren't the immediate impact on public health. It was time to lift the mask mandates. The risks are longer term and what this does to potentially erode CDC's authority," says @ScottGottliebMD pic.twitter.com/5tE2og0vT9
— Squawk Box (@SquawkCNBC) April 20, 2022
Gottlieb argues that the CDC left itself vulnerable because it didn’t follow the proper rule-making process, but that was only part of why the mandate got overturned. Mizelle did indeed rule that the CDC failed to follow the Administrative Procedure Act (APA), and that failure allowed her to set aside the rule altogether rather than issue an injunction against its enforcement. That alone and on its own dooms the CDC’s case on appeal, even if that was the only issue in Mizelle’s ruling.
But that was only part of the reason Mizelle set aside the rule. The main reason is that the CDC didn’t have the authority under its enabling statute to impose the rule in the first place. Gottlieb’s argument that the Biden administration needs to appeal this to preserve authority sounds as though Gottlieb didn’t bother to read the detailed, 59-page ruling in the first place. The enabling statute grants the CDC authority to “issue regulations” to prevent the spread of communicable diseases, limited to “inspection, fumigation, disinfection, sanitation, pest extermination, and destruction of contaminated animals and materials … and other measures.” As Mizelle noted, the “other measures” had to fit in those same categories, as the Supreme Court ruled when overturning the CDC’s eviction moratoria on the same basis — a lack of statutory authority.
As Mizelle also points out, the only way a mask mandate could fit into these potential regulatory categories would be to consider it “sanitation.” However, sanitation is something practiced on objects, not people. It references activities that either cleanse or preserve the cleanliness of particular objects, especially when read in the context of the statutory language governing the CDC’s regulatory authority. Forcing people to wear masks to access transit systems and facilities is not “sanitation” under any ordinary definition of the word.
But even if the Biden administration can convince the Supreme Court to accept its virtually unlimited definition of “sanitation” — and that seems unlikely after the big loss on the CDC’s eviction moratoria — it’s not enough. The CDC would still fail on the APA, as Gottlieb admits, which means an appeal is useless. The CDC would have to go back to square one and go through the proper rule-making process to create another mask mandate, which would take months. Why bother with an appeal at all rather than get started on the correct regulatory process?
And in fact, why wait for that when Congress can solve both problems much more quickly?
We have another way of making far-reaching, nationwide mandates carry the force of law. The CDC is not a coequal branch of government. https://t.co/zIsxF4bjEu
— Mary Katharine Ham (@mkhammer) April 20, 2022
Congress could impose a federal mask mandate on air and train travel, at least, on the basis of the Interstate Commerce Clause, and predicate it on CDC recommendations in pandemics. That wouldn’t require the CDC to do anything in a regulatory sense. So why doesn’t Congress act? Because it would be tremendously unpopular, for one thing. And for another, Congress loooooves regulation through grants of authority to agencies because it allows them to avoid responsibility.
If Gottlieb wants the CDC to be able to create these mandates, then he should be hitting up Congress to expand their statutory grant of authority or, better yet, deal with the issue directly. Appealing this decision won’t fix the statutory authority issue, it certainly won’t fix the APA defects that Gottlieb acknowledges, and it will be in pursuit of a policy that Gottlieb concedes should have been ended by now anyway. So what’s the point, other than to protect arbitrary and capricious abuses of power at the CDC?
Update: Nevertheless, they persisted:
To protect CDC’s public health authority beyond the ongoing assessment announced last week, CDC has asked DOJ to proceed with an appeal in Health Freedom Defense Fund, Inc., et al., v. Biden, et al. It is CDC’s continuing assessment that at this time an order requiring masking in the indoor transportation corridor remains necessary for the public health. CDC will continue to monitor public health conditions to determine whether such an order remains necessary. CDC believes this is a lawful order, well within CDC’s legal authority to protect public health.
CDC continues to recommend that people wear masks in all indoor public transportation settings. CDC’s number one priority is protecting the public health of our nation. As we have said before, wearing masks is most beneficial in crowded or poorly ventilated locations, such as the transportation corridor. When people wear a well-fitting mask or respirator over their nose and mouth in indoor travel or public transportation settings, they protect themselves, and those around them, including those who are immunocompromised or not yet vaccine-eligible, and help keep travel and public transportation safer for everyone.
Have fun storming the castle. Allahpundit is writing up a more comprehensive analysis of this move, so stay tuned.