Federal officials will no longer enforce a mask mandate for travelers on public transportation, including domestic flights and airports. This may or may not be the right move 25 months into a global pandemic that has already claimed almost 1 million American lives, but we don’t have a lot of confidence in the process.
Instead of listening to public health experts who have made an extensive review of available data, this call was made by a 35-year-old activist judge armed with a dictionary.
Who is in a better position to make the right choice? Thanks to a relentless campaign by ideological organizations lavishly funded by undisclosed donors, the judge gets the final word.
Anyone who thinks that the conservative legal movement is interested only in rolling back abortion rights should take a good look at the airline mask mandate case. Judges selected by the Federalist Society, nominated by Donald Trump and confirmed by a Republican-controlled Senate are out to dismantle the federal government’s ability to regulate pollution, financial institutions, dangerous workplaces and, in this case, public health.
Beginning in 2020, the federal Centers for Disease Control and Prevention mandated that travelers wear masks on flights and in airports to limit exposure to the SARS CoV-2 virus in places where distancing and ventilation were not possible.
The requirement has been extended several times, most recently until May 3, as we have gone through several waves of transmission. Since discovering that people can be infected and spread COVID without showing any symptoms, a universal requirement was considered the safest way to keep transportation flowing in a safe way.
But this week, U.S. District Judge Kathryn Kimball Mizelle of the Middle District of Florida struck down the rule, saying that the mandate exceeds the statutory authority of the agency.
The CDC was relying on a 1944 law, the Public Health Service Act, which allows it to impose conditions in ports and other facilities that would prevent the transmission of communicable disease, including “sanitation and other measures.”
In her written opinion, Mizelle focused on the dictionary definition of “sanitation” for several pages, finding that the plain meaning of the word did not include a requirement that people who may be carrying the virus without their knowledge cover their mouths and noses.
Mizelle graduated from law school in 2012 and has had a meteoric career, including a clerkship with Supreme Court Justice Clarence Thomas. She is not a public health expert and does not have a staff of scientists to evaluate whether the mask mandate on airplanes does prevent infections.
But she does have a mission, developed by the Federalist Society: to return the regulatory powers of the federal government to their pre-New Deal levels. Armed with their dictionaries, this generation of activist judges will make sure that no agency has the ability to respond to changing circumstances unless members of Congress had the gift of prophecy.
They say the point is to take power away from bureaucrats and give it to elected legislators, but that’s just rhetoric. Instead of executive branch experts working for a politically accountable president, decisions will be made by judges like Mizelle, who are selected for their politics and will never have to face the voters.
This setup might be good news for polluters or financial speculators, but not for the rest of us.
Send questions/comments to the editors.
