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Judge’s Mask Order Cramps Biden Vow to ‘Follow the Science’

April 20, 2022, 4:44 PM

A federal judge’s decision to overturn the federal mask mandate curbs the administration’s powers to enforce data-driven policies in tackling Covid-19 and future outbreaks, health law professors said.

President Joe Biden and his health officials have vowed to “follow the science” in their Covid-19 response—a phrase that’s come up in nearly every White House press briefing. In that realm, the Centers for Disease Control and Prevention decided last week to extend the mask requirement on planes, trains, and other public transportation through May 3 to assess the impact of omicron BA.2 subvariant.

U.S. District Court for the Middle District of Florida Judge Kathryn Kimball Mizelle decided April 18 to vacate the mask requirement, superseding the order that’s been in effect since early 2021.

American Airlines Group Inc., Delta Air Lines Inc., Southwest Airlines Co. and other airlines quickly shed their masking requirements following Mizelle’s decision.

“The courts are making it very difficult to follow the science,” Wendy E. Parmet, a public health legal scholar and director of Northeastern University law school’s Center for Health Policy and Law, said in an interview.

Mizelle questioned why the CDC didn’t look for alternatives and said the order doesn’t actually require universal masking to stop transmission since it allows for exceptions, such as people who are eating or drinking.

The CDC issues many non-binding guidelines, including masking recommendations. The mask order had more teeth because it stemmed from the agency’s isolation and quarantine legal authorities. The public health statute allows the CDC to take measures that prevent communicable diseases from spreading between states or to prevent its entry into U.S. borders. Breaking these orders is subject to fines or imprisonment.

Mizelle’s decision “handcuffs the CDC and every other federal public health agency, because it has such a narrow reading of the Public Health Service Act,” Lawrence O. Gostin, director of Georgetown University’s health law institute, said. “Federal health and safety rules of all kind—from infectious diseases through to occupational safety and the environment—are all at risk.”

When the next pandemic hits, the CDC needs to be powerful enough to make decisions that protect the public. “If the CDC becomes gun shy, always looking over its shoulder, it won’t be able to take measures that are rapid and decisive,” he said.

Mizelle, an appointee of President Donald Trump, ruled that the CDC had incorrectly described the mask mandate as a form of “sanitation” to justify its authority in the matter. She also found that the CDC had gone too far by issuing a regulation that “acts on individuals directly” rather than just their “property interests.”

“This is not us not following science,” rather it’s a Florida judge forcing the administration’s hand, White House spokesman Kevin Munoz said. The Justice Department plans to appeal the ruling.

White House Covid-19 coordinator Ashish K. Jha said the decision was “deeply disappointing.”

“CDC scientists had asked for 15 days to make a more data-driven durable decision,” Jha said in a tweet. “We should have given it to them.”

The mask order seems well within the CDC’s legal authority to require it under the Public Health Service Act, University of Pennsylvania health law and policy professor Allison K. Hoffman said in an email. “Her reading of the Act is very narrow and many public health experts think too cramped.”

The appeal will likely would go before the U.S. Court of Appeals for the Eleventh Circuit, which already has a conservative lean. Conservative circles praised Mizelle as a hero for her decision.

“If that court, which has a conservative composition, decides to uphold the judge’s opinion, the precedent will be even worse,” Gostin said.

Political Decision

If the administration opts not to appeal, the White House may be making a political calculation in a country where many people feel they have moved past the pandemic. The risk in appealing is that the Supreme Court could read the law similarly narrowly. The White House may want to avoid bad precedent, Hoffman said.

Other courts, including the Supreme Court, have limited the goverment’s ability to respond to the pandemic in other areas, particularly the high court’s ruling in January to block the shot-or-test rule for large employers, Parmet said.

“We’re seeing sort of a general widespread de-fanging of federal regulatory authority around health,” she said. “First, it was the eviction moratorium, then it was vaccines, and now it’s masking.” That leaves the agency with fewer enforcement tools to respond to Covid-19.

Since the CDC dialed back its general masking recommendations in February, Mizelle could have issued a more limited argument based on CDC’s own guidance, finding that the factual predicates to the mandate no longer hold, Parmet said.

“CDC is not recommending masking anymore, which puts CDC in a bit of a litigation pickle,” she said.

Such a ruling also would have ended the mask mandate, but it wouldn’t have quashed the CDC’s authority to reinstate the mask order if cases go up, the way Mizelle’s did. “This judge issued an opinion stating that CDC lacks the power, no matter what the facts are.”

A narrower conclusion would have been based on the arbitrary and capricious standard, which would require looking at the evidence. “That would have been a decision based on the science, and maybe you could go either way on that. But she doesn’t get there. She just construes the statute as not ever permitting this mandate. Science be damned,” Parmet said.

Minzell mentions the arbitrary and capricious standard, saying the CDC “failed to adequately explain its reasoning” and doesn’t address what she said are supplementary alternatives to masking such as testing, temperature checks, and occupancy limits.

“Beyond the primary decision to impose a mask requirement, the Mask Mandate provides little or no explanation for the CDC’s choices. Specifically, the CDC omits explanation for rejecting alternatives and for its system of exceptions. And there are many, such that the overall efficiency of masking on airplanes or other conveyances could reasonably be questioned,” Minzell wrote.

Judges shouldn’t make public health policy, Gostin said. “What this judge has done is she’s substituted her opinion for that of career scientists who are reviewing the evidence, and as a result, we have confusion and chaos at the airports and an agency that’s badly wounded.”

In addition to challenging the ruling, the administration can continue to recommend that people take actions to protect themselves, said Gigi Gronvall, senior scholar at the Johns Hopkins Center for Health Security and an associate professor at the Johns Hopkins Bloomberg School of Public Health.

Further, the government can implement other safety measures like the steps it’s already taken to improve air quality, Gronvall said. “Ultimately, we will all benefit when the indoor spaces we go into are better ventilated and the air filtered.”

“We are not done with this pandemic, and though of course I hope we have been through the most challenging variants, there is just no guarantee that future ones will be mild,” Gronvall said. “We need to continue to reduce opportunities for the virus to mutate.”

To contact the reporter on this story: Jeannie Baumann in Washington at jbaumann@bloombergindustry.com

To contact the editors responsible for this story: Fawn Johnson at fjohnson@bloombergindustry.com; Alexis Kramer at akramer@bloomberglaw.com