DOJ Appeals Judge’s Ruling
Passengers erupted in cheers and applause last week as pilots announced over the loudspeakers last week that they were free to remove their masks. The startling message came shortly after a Florida federal judge struck down the government’s long-running rule that forced airplane and train passengers to wear masks.
U.S. District Judge Kathryn Kimball Mizelle, a brilliant jurist appointed to the bench in 2020 by former President Trump, ruled the mandate exceeded the authority of the agency and that its implementation violated administrative law.
“The CDC did not allow for public participation through notice and comment before issuing the mask mandate. Accordingly, promulgation of the mandate violated the [Administrative Procedure Act],” wrote Mizelle.
The judge also concluded that the CDC had “improperly invoked” the “good cause” exception to the notice-and-comment requirement for new federal regulations. In addition, she said the mask mandate was “arbitrary and capricious” because the CDC “failed to adequately explain its reasoning.”
The judge took aim at the CDC’s defense of its mask mandate as a form of “sanitation,” one of the provisions of the 1944 Public Health Service Act that authorizes laws to prevent the interstate spread of communicable diseases. The law mentions “inspection, fumigation, disinfection, sanitation, pest extermination” and “destruction” of infected or contaminated “animals or articles.”
Mizelle wrote that “sanitation” refers to “garbage disposal, sewage and plumbing, or direct cleaning of a dirty or contaminated object,” and not public-health measures.
“Wearing a mask cleans nothing. At most, it traps virus droplets. But it neither ‘sanitizes’ the person wearing the mask or ‘sanitizes’ the conveyance (transit vehicle),” the judge contended.
In her ruling, Mizelle noted that the CDC failed to explain why all masks—homemade and medical-grade—are sufficient for the declared purpose of Covid virus control, when a great many studies have found that simple cloth masks accomplish almost nothing.
“The agencies are reviewing the decision and assessing potential next steps. In the meantime, today’s court decision means CDC’s public transportation masking order is not in effect at this time,” a Biden Administration official said April 18.
“When has there been a judicial ruling that yielded so much rejoicing nationwide as Judge Kathryn Kimball Mizelle’s vacating the federal mask mandate in public transportation?” wrote the Wall Street Journal. “Spontaneous applause broke out in midair on some flights, as several airlines immediately announced that masks are now optional.”
“A wonderful moment mid-flight on Alaska Air today!” Ben Dietderich, press secretary for Sen. Dan Sullivan, R-Alaska, wrote. He posted a short clip of passengers applauding the announcement from the flight deck that the mask mandate was no longer in effect.
“Ladies and gentlemen, this is your pilot speaking. This is the most important announcement I’ve ever made. The federal mask mandate is over. Take off your mask if you choose!’” Dietderich quoted the pilot as saying.
Most U.S. airlines—United Airlines, Delta Air Lines, Alaska Airlines, Southwest Airlines, American Airlines and JetBlue—reacted quickly to Mizelle’s ruling, announcing through a host of press releases that they had voided mask requirements for passengers.
“As of today, masks are optional in airports and onboard aircraft,” Alaska Airlines announced.
“We are relieved to see the U.S. mask mandate lift to facilitate global travel as Covid-19 has transitioned to an ordinary seasonal virus,” Delta Air Lines declared. “We look forward to, once again, fully enjoying big grins, happy smiles and whistling on our flights.”
United Airlines quickly followed suit, announcing that masks were no longer required on domestic flights and select international flights, depending upon the arrival country’s requirements.
“Pilots wasted no time in letting pandemic-weary passengers know via intercoms that they could remove their masks — setting off sky-high celebrations in the cabins,” Newsweek reported.
“When you’re actually in mid-flight and they tell you the federal mask mandate is lifted for travelers–wow! Lots of cheering from passengers on board,” a TV reporter tweeted to her followers, quoted by the New York Post.
Flight attendants and industry groups had been urging the Biden administration to lift the mandate, citing the rise in “unruly passengers.” According to the Federal Aviation Administration, face mask-related incidents accounted for over 4 thousand reports of unruly passengers this year.
The chief executive officers of all the major airlines had called on the Biden administration last month to ditch the mask mandate because the requirement did not reflect the current health environment.
Nevertheless, the ruling blindsided the CDC which had announced last week that it would extend the mask mandate for airplanes and trains through to May 3, citing rising Covid-19 cases and new variants.
Responding to the bombshell that the mask regulations had been struck down, the CDC issued a terse statement saying it “believes [the mask mandate] is a lawful order, well within CDC’s legal authority to protect public health.”
The Justice Department filed a notice the same week that it would appeal Judge Mizelle’s order, at the behest of the White House and the CDC.
Ruling Triggers Meltdown
The judge’s decision triggered a meltdown among liberals, with many mainstream media organs publishing hit pieces against Mizelle, focusing on her youthful age instead of advancing legal arguments to explain why she was wrong.
The judge was attacked as “unqualified” (NY Times, PBS, USA), “dimwitted” (The New Republic), “no experience” (Salon, CNN, Forbes), “too young” (Politico, HuffPost).
Taking absurdity to new levels, critics even stooped to attacking Mizelle’s husband, Chad Mizelle, as if his alleged “youth and inexperience” in some way impugned his wife’s judicial competence.
“[Husband] Chad Mizelle faced similar questions about his youth and inexperience when his friend and ally at the White House, Stephen Miller, smoothed the way for him to become the acting general counsel” at DHS, smirked the Daily Beast and Daily Kos.
“Try explaining to your friends in other liberal democracies that a single unelected, life-tenured, 35-year-old judge just abolished the air travel mask mandate for the entire country,” Slate senior writer Mark Stern fumed.
Underlying the hysteria was apparently a fear that Mizelle’s ruling might strip the CDC and other public health agencies from the emergency powers they’ve grown accustomed to wielding while the pandemic held sway.
“Governments at all levels have abused their emergency powers during the pandemic,” noted a WSJ editorial. “This might have been warranted amid the uncertainty early on. But as Justice Neil Gorsuch wrote in November 2020, “even if the Constitution has taken a holiday during this pandemic, it cannot become a sabbatical.”
Yet public-health officials continue to sidestep the law as if the law and Constitution don’t matter.
As an example, the WSJ editorial noted that “science shows that the cloth masks that most people don make little difference in preventing transmission and illness,” as people in a room together end up breathing the same air with the same aerosol particles, masks or no masks.
A study of health care workers in more than 1600 hospitals showed that cloth masks only filtered out 3 per cent of particles, writes the Federalist. An article in the New England Journal of Medicine stated that “wearing a mask offers little, if any, protection from infection” and that the desire for widespread masking is a “reaction to anxiety” over the pandemic.
“Why then would the administration seek to appeal Judge Mizelle’s ruling?” the WSJ article wondered.
“Probably to preserve the CDC’s expansive interpretation of the law that gives it power to impose virtually whatever it wants,” the editorial concluded.
A NY Post article noted the double standard displayed by the heads of the CDC and other public health agencies, as they have been frequently caught without masks when they assumed they were out of range of the cameras.
Most recently, “CDC Director Rochelle Walensky and Dr. Anthony Fauci attended an almost entirely unmasked DC white tie gala this month. At least 80 of 630 guests tested positive for Covid-19 after attending the Gridiron Club dinner,” the NY Post article reported.
Fauci Takes Heat
Watching his agency’s powers subject to being eroded by Mizelle’s ruling, NIAID director Anthony Fauci insisted that the courts should have no right to review CDC dictates, nor have a say in whether the public health agencies are acting within the law.
An NIH official echoed this position, stating the courts have no business “overruling a public health judgment by a qualified organization like the CDC.”
Fauci slammed Mizelle for dropping the federal mask mandate, telling CBS News the Florida-based judge has “no experience” in the medical field.
The mask mandate “is a CDC issue. It should not have been a court issue,” Dr. Fauci informed CNN, adding that “we are concerned” about “courts getting involved in things that are unequivocally public-health decisions. That is disturbing in the precedent that it might set.”
Fauci took considerable heat for his comments.
Rep. Dan Bishop, R-N.C., responded, “What’s ‘disturbing’ is that Fauci and the bureaucrats think they are above the law.”
West Virginia Attorney General Patrick Morrisey, R-W.V., tweeted, “Fauci may want to take a little time and review the Constitution and the case law. The CDC must follow the law just like any other agency or person.”
In another Fauci interview, the NIAID director claimed to be “both surprised and disappointed” about the court ending the travel mask mandate. “Because those types of things really are the purview of the CDC,” he said.
“Is this lack of intelligence or deceit on Fauci’s part? Of course it’s the job of CDC, not the judge, to make public health policy. That wasn’t what the judge was doing,” explained conservative commentator Glen Greenwald. “She was ruling on the legal limits and scope of CDC’s power. And that’s the job of a judge to do, not the CDC.”
“Federal judges have life tenure to insulate them from political pressures when they address such issues,” a WSJ editorial argued. “Under our system of government, presidents do not get to do whatever they want, even if the majority demands it. Their policies must be consistent with the law.”
Heavily Invested in Doom-and-Gloom
Even as the Covid virus is evolving into something similar to the seasonal flu, and vaccines and therapies have greatly reduced mortality, the administration continues to assert that it should have sweeping power to take emergency actions in the name of protecting people.
Even if there is little evidence that these actions do any “protecting,” or that Americans still need to be in emergency mode.
Fauci and his colleagues continue to push a doom-and-gloom scenario that runs counter to current data, critics say, similar to Fauci’s doomsday prediction in November that “the unvaccinated are facing a winter of severe illness and death.”
Omicron turned out to be relatively mild for the vast majority of Americans but the Fauci narrative remained unchanged. Even today, with the data showing a steep decline in Covid infections, Fauci told CBS News “it’s obvious to everyone we’re seeing that infections are on the rise. Whether or not that will result in an increase in hospitalizations, we don’t know.”
Echoing the same dark narrative and even hinting at life-threatening scenarios, he told ABC’s This Week that the Covid virus “is never going to be eradicated. And what’s going to happen is that we’re going to see that each individual will have to make their calculation of the amount of risk they want to take [in not masking up].”
Fauci gave no indication that he’s aware that Americans now have access to a wide array of Covid vaccines, and to anti-viral pills and therapeutics that have shown great efficacy in crushing Covid and its many variants in the early stages. These treatments have been able to greatly diminish serious illness, hospitalization and death.
The head of NIAID seems to be living in his own bubble, where these very efficacious therapeutics do not exist, and have never existed.
CDC, White House Pushing Appeal
White House press secretary Jen Psaki called Judge Mizelle’s decision “disappointing” during a press briefing, noting that the TSA and CDC are still recommending mask-wearing on public transit.
“The CDC recommended continuing the mask order for additional time to be able to assess the latest science in keeping with its responsibility to protect the American people,” Psaki said. “So, this is obviously a disappointing decision.”
Just 48 hours later—after President Biden replied “that’s up to them” when asked if people should keep wearing masks on planes—the White House backtracked at the behest of the CDC, and asked the Justice Department to file an appeal in Tampa Federal Court.
The appeal will likely drag on for many months. Barring the Biden administration asking for an emergency stay, mask-optional will remain the status quo for now, experts say.
“I think it’s too late to ask for an emergency stay. That would have been something they should have done immediately,” said attorney Brant Hadaway who co-authored the plaintiff brief. There was a great deal of dithering that went on with the DOJ saying they were waiting for CDC—but there was no motion for a stay.”
Ultimately, the goal of the appeal could have more to do with avoiding a judicial precedent that strips the CDC of its authority to issue orders during a health emergency, and less about replacing the mask mandate for its own sake, the attorney noted.
“The CDC wants to keep its authority. They want their authority to be as broad as possible,” said Hadaway.
Dr. Cameron Webb, the head of the White House Covid-19 Task force appeared to concur. In an appearance on Fox News, he said, “I think the administration has been clear we’re going to continue to stand up for CDC’s ability to issue public health guidance. Now and for the future.”
The case is now in the hands of the appeals court and travelers are free to carry on masked or unmasked, as each individual chooses.
“Unless the 11th Circuit Court of Appeals overturns this, the federal travel mask mandate is dead,” said Leslie Manookian, president of Health Freedom Defense Fund that won the lawsuit.
LAWSUIT ALLEGED “POLICE POWER,” MEDICAL HARM
The lawsuit against the Biden Administration and the CDC for imposing a nationwide mask mandate for public transportation was brought by the Idaho-based Health Freedom Defense Fund (HFDF).
In its complaint, the organization described itself as an advocacy group for “medical choice,” that opposes “laws that force individuals to submit to the administration of medical products, procedures, and devices against their will.”
The HFDF brief contended that the CDC’s mass-transit mask order was unlawful because it exceeded the agency’s authority, was enacted without proper noticing to the public and was dangerous to health. The mask order was also a sweeping power-grab, the lawsuit charged.
The plaintiff group was joined by two Florida residents who claimed that wearing masks on airplanes had given them overwhelming anxiety, panic attacks, difficulty breathing and headaches.
Through its attorneys, Brant Hadaway and George Wentz, the Defense Fund argued that the Biden administration had claimed “a sweeping police power” over passengers boarding airplanes, buses and other public transport, by declaring the Covid-19 pandemic an “emergency,” even when that was no longer the case.
Until a few days ago, passengers who did not fully mask up throughout the flight were harassed by flight attendants and threatened with monetary fines, federal penalties, and being deprived of future traveling privileges.
The complaint also suggested that mask-wearing causes headaches, emotional distress and “inadequate ventilation and increased levels of carbon dioxide…known as hypercapnia.”
It cited a German study by Harald Walach which claimed that “short-term mask-wearing in children of all ages” caused unacceptable buildup of carbon dioxide in their blood. Other studies pointed to evidence of psychological harm induced in children by robbing them of facial cues that are a vital mode of communication, hindering children’s social and emotional development.
“The potential adverse health effects from this practice cannot be casually dismissed,” the suit stated. Especially when children are at virtually zero risk of falling seriously ill with Covid.
GOV. DESANTIS FILED SIMILAR LAWSUIT ON BEHALF OF FLORIDA AND 20 STATES
Florida Governor Ron DeSantis, a vocal critic of mask mandates since the beginning of the pandemic, celebrated Monday’s ruling from a federal judge that struck down the Biden administration’s mask mandate for airplanes and other public transportation.
“Great to see a federal judge in Florida follow the law and reject the Biden transportation mask mandate. Both airline employees and passengers deserve to have this misery end,” DeSantis tweeted.
Less than a month ago, DeSantis and his attorney general filed their own lawsuit against the mask mandate for public transportation on behalf of Florida and 20 other states. The list includes Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, Utah, Virginia and West Virginia.
“Florida has led the nation in standing up to misguided federal government policies and fighting back against heavy-handed mandates that have no scientific backing,” the governor said in a press release.
“If politicians and celebrities can attend the Super Bowl unmasked, every U.S. citizen should have the right to fly unmasked. It is well past time to get rid of this unnecessary mandate and get back to normal life,” DeSantis said.