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Who Should Decide the Nation’s Pandemic Response?

May 12, 2022, 8:00 AM

Last January, U.S. Supreme Court Justice Neil Gorsuch asked the simple, but critical, question of who decides “the nation’s pandemic response” while concurring in the court’s decision to block OSHA’s emergency rule requiring large employers to either mandate vaccination or require masking and testing of their employees. Traditionally, the answer that courts gave to such questions was “the elected branches.”

Although courts understood that they had a role to play ensuring that officials did not usurp their power or violate constitutionally protected rights, courts used to review challenges to public health measures with caution and deference, recognizing that health authorities had an expertise they lacked.

Over the course of the pandemic, some federal judges have followed that tradition. Increasingly, others have ignored it, seemingly eager to jump in and rule as broadly as possible while giving little weight to scientific evidence or the harm their decisions may cause.

Two recent opinions by federal judges in Florida regarding the Centers for Disease Control and Prevention (CDC) mask mandate for public transportation highlight the different approaches.

Health Freedom Defense Fund Inc. v. Biden

In her April 18 decision in Health Freedom Defense Fund, Inc. v. Biden, U.S. District Court Judge Kathryn Kimball Mizelle issued a nationwide injunction against the mask mandate. The case, filed in the Middle District of Florida, is under appeal to the Eleventh Circuit.

Mizelle’s decision displayed neither deference nor restraint. Instead, seeming oblivious of the criticisms that Supreme Court justices have directed at nationwide injunctions, Mizelle issued one for an about-to-expire mandate, ignoring the equities of the case, as well as the dramatically different circumstances between air travel in Florida and mass transit in Chicago.

Mizelle also based her decision on as broad a ground as possible. Although she found— problematically—that the CDC had violated the Administrative Procedure Act (APA), she chose not to rest on that violation.

Instead, she opted to go big and bold, ruling that the CDC lacked authority under Sec. 361(a) of the Public Health Services Act to issue the mandate. In construing the statute, she granted the CDC no deference, ruling that none was required because the statutory language was clear, and the issue was a so-called “major question,” so that the rule could not be issued without explicit statutory authorization.

Yet, Mizelle’s own discussion of the statute’s meaning showed that its language was anything but clear. Nor does the mandate resemble any of the other regulations in which the Supreme Court has applied the major questions doctrine. Further, in construing Sec. 361(a), she essentially redacted language granting the CDC broad authority to “other measures, as in [its] judgement are necessary.”

She then concluded that the mask mandate did not fall within the enumerated term “sanitation” because her own research in the Corpus of Historical American English showed that the most common, but not only, definition of the term in the years before Sec. 361(a) was enacted was “removal or neutralization of elements injurious to health.” With that, she discarded a second definition, “the use of sanitary measures to preserve health,” even though it was more relevant to public health, and she was defining a statute called “the Public Health Services Act.”

Wall v. Centers for Disease Control and Prevention

In his April 29 decision in Wall v. Centers for Disease Control and Prevention, Judge Paul Byron, also of the Middle District of Florida, adopted a very different approach. In particular, he rejected the contention that the major questions doctrine applied, noting that the mandate did not raise questions of significant economic and political significance that “demand explicit congressional delegations of power.”

Byron also viewed the language in Sec. 361(a)—language that sent Mizelle to the dictionary—as signs of statutory ambiguity that required him, under the Chevron doctrine, to offer the agency deference. Further, and again in contrast to Mizelle, he found that the lives the mandate would save provided “good cause,” for the CDC to forgo notice and comment rulemaking.

Many, though not most, Americans may applaud the end of masking on planes, trains, and buses. But, the importance of the issues discussed in the two cases goes far beyond the mandate under review.

The questions raised by the mask mandate cases, as with so many other Covid-19 cases, is not which policy is correct. It’s who should answer that question? Judges or health officials?

Judicial Review Can Be Abused

Judicial review is integral to the rule of law and can be crucial to preventing authorities from abusing their powers during health emergencies. But judicial review can also be abused, and when it is, lives can be lost.

This is why courts for generations recognized the importance of public health to law, as expressed in the ancient maxim, salus populi suprema lex esto—"Let the health or welfare of the people be the supreme law.” It is also why courts grant deference, as Byron did, to health authorities over questions of science and have treaded carefully when issuing decisions that might undermine the public’s health.

Today, more judges seem willing to throw all restraint aside. That’s dangerous for the public’s health. It’s also yet another threat to the courts’ legitimacy.

This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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Wendy E. Parmet is the George J. and Kathleen Waters Matthews Distinguished Professor of Law and professor of public policy and urban affairs at Northeastern University, where she is the faculty co-director of the Center on Health Policy and Law.