Bloomberg Law
Free Newsletter Sign Up
Login
BROWSE
Bloomberg Law
Welcome
Login
Advanced Search Go
Free Newsletter Sign Up

Mask Ruling Appeal Gets Backing From Former CDC Directors (1)

June 7, 2022, 2:01 PMUpdated: June 7, 2022, 3:48 PM

Six former CDC directors have thrown their support behind an Eleventh Circuit appeal to maintain masking requirements on planes and other mass transit in a court filing that argues weakening the agency’s authority will prove dangerous.

More than 200 public health advocates and officials, including nearly all living former agency heads, signed a friend-of-the-court brief filed Tuesday in support of the Department of Justice’s appeal. The DOJ wants to undo an April lower court decision that lifted the Centers for Disease Control and Prevention’s requirement, which was in effect since early 2021.

“The public health world has spoken with literally a singular voice in support of making sure that CDC has the powers it needs,” Lawrence O. Gostin, one of the drafters of the amicus brief, said in an interview.

“CDC must have the power to act nimbly, and decisively when a health emergency hits—and we don’t know what that health emergency will be,” said Gostin, a university professor and founding O’Neill chair in global health law at Georgetown University. “It’s not about masks, per se. It’s about giving the nation’s public health agency the tools it needs to keep America safe and secure.”

Judge Kathryn Kimball Mizelle of the US District Court for the Middle District of Florida ruled that the CDC incorrectly described the mask mandate as a form of “sanitation” to justify its authority in the matter. She 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 signatories of the amicus brief include epidemiologists, local and regional health commissioners, federal agency heads, and organizations such as the American Public Health Association and the president of the National Academy of Medicine, said Gostin.

The former CDC directors include Julie L. Gerberding, Tom Frieden, William L. Roper, Jeffrey P. Koplan, William H. Foege, and Richard Besser, who served as acting director.

The Health Freedom Defense Fund, which sued the US government to lift the mask requirement, has until Aug. 1 to file its own brief to the US Court of Appeals for the Eleventh Circuit.

Core Function

One of the main arguments of the amicus brief is that the mask mandate is a core function of the CDC.

“I was, for example, very supportive of the housing eviction moratorium that the CDC issued. But I said at the time, and I say now, that was on the very edges of CDC’s authority,” Gostin said about the order that expired last year to protect people from getting evicted as a way of slowing the spread of the virus that causes Covid-19.

But the mask requirement is at the core of the CDC’s authority, Gostin said. “It’s actually at the height of its powers. And if it can’t act in this way on an airline in an airport, it can’t do anything. And you’re literally kneecapping the agency.”

The brief also argues that Mizelle’s interpretation of the word sanitation in the Public Health Service Act is too narrow and constrained.

“Wearing a mask cleans nothing,” Mizelle, an appointee of former President Donald Trump, wrote. “At most, it traps virus droplets. But it neither ‘sanitizes’ the person wearing the mask or ‘sanitizes’ the conveyance.”

But when the US government adopted the law in 1944, “sanitation” meant health hygiene, Gostin said. He noted that when the World Health Organization originally adopted the international health regulations to prevent global spread of disease, they were called the international sanitary regulations.

“Even if you’re an originalist and looking at statutory and constitutional language, the original meaning sanitation was always very broad and certainly included masks. Masks have been part of infectious disease control for over a century in the United States, and they were widely used during the 1918 flu pandemic,” he said.

The case is Health Freedom Defense Fund v. United States, 11th Cir., No. 22-11287, amicus brief filed 6/7/22.

(Updated with link to amicus brief)

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

To contact the editor responsible for this story: Alexis Kramer at akramer@bloomberglaw.com