by Wendi Strauch Mahoney, April 19, 2022 – Uncover DC

Photo/https://brighterworld.mcmaster.ca/

On Monday, a federal judge in Florida put the administrative state on notice and vacated the CDC’s travel mask mandate. United States District Judge Kathryn Kimball Mizelle, a Trump appointee, ruled the agency exceeded its statutory authority. Press Secretary Jen Psaki told reporters in Monday’s press conferencethat the ruling was “disappointing” and that the Biden administration still recommends the use of masks for travel. Psaki also said the Centers for Disease Control and Prevention (CDC) are reviewing the decision while the Department of Homeland Security would “make any determinations about litigation.”

Because of the ruling, the TSA released a statement to announce that “effective immediately, TSA will no longer enforce its Security Directives and Emergency Amendment requiring mask use on public transportation and transportation hubs. TSA will also rescind the new Security Directives that were scheduled to take effect tomorrow.”

In the lawsuit initially filed in July of 2021, the Health Freedom Defense Fund, Inc. (HFDF), Sarah Pope, Ana Carolina Daza, individuals, Plaintiffs v. Joe Biden, Jr. Et al., the plaintiffs sought a declaratory judgment stating that the Mask Mandate is unlawful and requested it is set aside for violating the Administrative Procedure Act (APA). Daza argued that she suffers from anxiety while wearing the mask but could not obtain a medical exemption because the “government does not recognize her anxiety as a basis for a medical exemption.” Pope alleged similarly that masks constrict breathing, which “provokes or exacerbates her panic attacks.”

The Health Freedom Defense Fund is a Wyoming-based nonprofit “which seeks to protect and advance health freedom, educating Americans on informed consent, advocating for human rights and bodily autonomy for all people, and legally challenging unethical mandates, laws, and policies when necessary.”

Judge Mizelle’s Ruling

Monday’s 59-page ruling argued that agencies like the CDC have arguably been one of the central forces dictating COVID-19 policies in the name of “science” throughout the pandemic. The court opined that “‘because [a]dministrative agencies are creatures of statute’ they ‘possess only the authority that Congress has provided.’” Judge Mizelle also points out that while “relying upon the Public Health Services Act of 1944 (PHSA) for authority” gave them limited powers of regulation and inspection, it does not give the CDC the authority to issue mask mandates.

Judge Mizelle looks to the “ordinary” language found in the second sentence of U.S.C. 42 §264 (a) stipulating that:

“[f]or purposes of carrying out and enforcing such regulations, the Surgeon General may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary.”

Mizelle finds that mask-wearing is none of the above. The CDC also used the PHSA language, saying that a mask mandate is “sanitation.” However, the judge states that the definition of sanitation in the PHSA is “undefined.” As a result, she again refers to contextual and ordinary “mid-century” meanings of the word, finding that sanitation means active cleaning. Since she argues:

“[w]earing a mask cleans nothing. At most, it traps virus droplets. But it neither sanitizes the person wearing the mask nor sanitizes the conveyance (the mask). Because the CDC required mask-wearing as a measure to keep something clean—explaining that it limits the spread of COVID-19 through prevention, but never contending that it actively destroys or removes it—the Mask Mandate falls outside of § 264(a).”

Judge Mizelle also recognized that the government may have “read ‘sanitation’ and ‘other measures’ more broadly” to mean mask-wearing was a preventative measure, the context of the statute used to justify the mandates meant “changing, not preserving, the status of an object or area by cleaning…a positive act to make a thing or place clean.”

Moreover, Mizelle argues that § 264(c),(d) refer only “to restrictions of individual movement” and the CDC’s power to “directly regulate individuals only if they are traveling into the United States from abroad” or are “reasonably believed to be infected with a communicable disease in a qualifying stage.” 

Even the Chevron deference, argues Mizelle, does not confer on the CDC the discretion to impose a mask mandate. The Chevron deference is sometimes invoked to “defer to agency interpretation of a statute that the agency administers when the statute is ambiguous, and the interpretation is reasonable.”In this case, argues the judge, the statute is not ambiguous, and the government’s interpretation is “not a reasonable one.”

One of the most important parts of the ruling is Mizelle’s opinion that the power government sees in the PHSA is a “mirage.” She essentially argues that nowhere in the PHSA does Congress describe or stipulate a scenario where the “usual constitutional balance between the States and the Federal Government” can be altered. She says that there is no unmistakably clear language in 264(a) to indicate that “Congress intended for the CDC to invade the traditionally State-operated area of population-wide, preventative public-health regulations.”Essentially, Congress did not make explicit law to authorize mask mandates; therefore, the CDC exceeded its authority.

Judge Mizelle also noted, among other things, that the public was not accorded the required “notice and comment” period that would have permitted “interested parties” to comment on agency action “before that action is embedded in a final rule.” The CDC failed to allow for public comment participation before issuing the mandate, nor did it explain its reasoning for having made the exception.

Notably, the government argued that its “error” to provide a public comment period “was ‘harmless’ because public comments would have ‘focused’ primarily on dubious assertions that would not have changed the CDC’s mind.” Mizelle asserts that “the Court does not dole out indulgences for bypassing notice and comment merely because an agency has its mind made up.”

Cloth Masks Do Not Prevent Transmission of SARS-CoV-2

While the Court did not argue the efficacy of masks in the prevention of disease, experts who are well-versed in the use of masks state that the average cloth masks that are now seen on travelers do not work to “completely block the transmission of infective SARS-CoV-2 droplets/aerosols.” The CDC itself has struggled to provide consistent guidance on wearing masks.

Industrial hygienists, like Kristen Meghan Kelly, who study environmental hazards, say that destruction and dilution are far better than masks in reducing the transmission of viruses. She told UncoverDC in April of 2021 that “cloth masks are completely ineffective barriers against the COVID-19 virus” because “COVID-19 particles are mostly small aerosols, not droplets” and can easily penetrate masks.

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