The decision that struck down the federal mask mandate for airports and other transportation hubs nearly perfectly encapsulates the Trumpification of the federal judiciary. The opinion, by Kathryn Kimball Mizelle, a U.S. District Court judge in Tampa, reads like a performance-art version of various tenets of Republicans’ anti-government judicial philosophy. But the consequences of the decision are very real, and they provide another reminder of how the conservative takeover of the federal judiciary will further Republicans’ political agenda for decades to come.
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Monday’s decision involved a challenge to the Centers for Disease Control and Prevention requirement that travelers at airports, train stations and other transportation hubs wear a mask, the requirement applied on airplanes, buses and other public conveyances. Mizelle concluded the requirement exceeded the CDC’s authority under federal statutes.
The decision relied heavily on the reasoning of several recent Supreme Court decisions that reached similar conclusions about other policies created by President Biden’s administration. In August, the Supreme Court invalidated the CDC’s pandemic-related moratorium on evictions. And in January, the high court invalidated the Occupational Safety and Health Administration’s requirement that workplaces adopt a vaccination requirement or a testing and masking regime. In both cases, the court concluded that federal law did not give the agencies the authority to enact the policies.
The high court’s decisions in those cases reflected, to varying degrees, several tenets of Republicans’ judicial philosophy. First was a very narrow kind of textualism seemingly designed to limit agency authority. In the eviction moratorium case, the court noted that Congress granted the CDC the power to issue regulations that “in [its] judgment are necessary” to prevent the spread of disease — a fairly sweeping power. However, the conservative justices noted, the subsequent sentence in the law illustrates “the kinds of measures that could be necessary: inspection, fumigation, disinfection, sanitation, pest extermination, and destruction of contaminated animals and articles.” (The statute also allows the CDC to enact “other measures” if it considers them “necessary.”) Halting evictions did not fit into the sorts of actions described in that list, they concluded. The liberal justices disagreed, but the court’s reading was not entirely outlandish. In the vaccine case, the court stretched a bit more to defang the agency. It concluded, for example, that OSHA could not regulate hazards that aren’t uniquely tied to the workplace, such as the coronavirus, which can be contracted anywhere. But by this logic, OSHA could also not set protocols for using ladders, because people also fall off ladders at home.
Those arguments may have been flawed. But the federal district court decision on the transportation mask mandate reads like a parody of this line of reasoning. Alternatively, it might just provide a more transparent illustration of how political Republican courts’ reasoning is, even when it is draped in legalisms.
Again the judge purported to rely on Republican judges’ preferred method for interpreting statutes: textualism. The court zeroed in on the examples Congress gave for measures the CDC could take to prevent disease spread — inspection, fumigation and so on. The court focused on “sanitation” in particular, supposedly the closest analogue to mask-wearing. The power to enact “sanitation” measures does not include the power to require masking, the court said, because “sanitation” refers to “measures that clean something, not ones that keep something clean.” If that bizarre logic is correct, then the CDC couldn’t require surgeons or nurses to wear gloves during surgery, since a glove, like a mask, “cleans nothing.”
Drawing from the Supreme Court’s decisions in the OSHA and eviction cases, the district court noted with suspicion that, since the enactment of the relevant statute outlining the CDC’s powers in 1944, the agency has primarily relied upon it for the purpose of “quarantining infected individuals and prohibiting the import or sale of animals known to transmit diseases” — adding, ominously, “at least until recently.” “Within the past two years” it has begun to enact many new measures. Could that perhaps be because the country was combating the coronavirus pandemic during those two years? The court opted instead to treat the advent of these new measures as evidence of a nefarious power grab.
The court also invoked the “major questions” doctrine from the OSHA and CDC cases. The doctrine is an amorphous idea that has essentially become Republican judges’ fanfic about how to interpret federal statutes. As the Supreme Court put it in the evictions case, the courts “expect Congress to speak clearly” if it assigns powers “of vast economic and political significance” to an agency. Republican courts, however, have treated the doctrine as if it means that statutes do not allow agencies to do anything that strikes Republican judges as a big deal. Here, apparently, requiring people at transportation hubs to wear masks for a finite period of time is a decision of such “vast economic and political significance” that Congress must specifically authorize it — rather than letting an agency charged with protecting the public health make the call.
The court also ruled that the CDC was wrong to rush to implement the mandate, skipping the usual period in which the public can offer comments. In one of the more stunning passages of the opinion, the court wrote: “The Court accepts the CDC’s policy determination that requiring masks will limit COVID-19 transmission and will thus decrease the serious illnesses and death that COVID-19 occasions. But that finding by itself is not sufficient to establish good cause” to bypass a longer process. If preventing serious illness and death isn’t a good enough reason, what is?
Judge Mizelle is 35 years old. She was 33 when President Donald Trump nominated her to the federal bench. The American Bar Association rated her unqualified — she was only eight years out of law school — but the Republican Senate confirmed her anyway. Trump White House Counsel Donald McGahn said in 2018 that the Trump administration had “a coherent plan here where, actually, the judicial selection and the deregulatory effort are really the flip side of the same coin.” Here we see the payoff of that approach to judicial appointments.
In a sane democracy, a single 35-year-old lawyer with a lifetime appointment who was designated as unqualified by the ABA would not be making national covid policy. But that is the constitutional democracy that the Trump administration gave us. And given the Trump administration’s focus on appointing young judges, it will be entrenched for decades.
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