by Mitch Kokai
Senior Political Analyst, John Locke Foundation
The Justice Department has filed what hopefully is a doomed appeal of a federal judge’s order Monday vacating the federal mask mandate for airline, train, and bus passengers.
District Court Judge Kathryn Kimball Mizelle of Florida ended what had become a severe (and unjustified) annoyance to travelers, judging by the cheers that erupted on flights across the country when she issued her decision in Health Freedom Defense Fund v. Biden.
If the 11th U.S. Circuit Court of Appeals follows the law, the Biden administration will lose again because, contrary to the claims of critics who are busy attacking her personally, Mizelle’s opinion is well researched and well written.
Her opinion also follows precedent, including the Supreme Court’s holding last year in Alabama Association of Realtors v. HHS. In that case, the Supreme Court squelched the nationwide moratorium imposed by the Centers for Disease Control and Prevention on eviction of tenants during the COVID-19 pandemic, saying that the CDC was trying to use “a decades-old statute that authorizes it to implement measures like fumigation and pest extermination.”
As the Supreme Court concluded, “[i]t strains credulity to believe that this statute grants the CDC the sweeping authority that it asserts.”
That is important because the Centers for Disease Control and Prevention relied on the very same statute to justify its issuance of a regulation on Feb. 3, 2021, requiring masks on all public transportation and in airports and train stations.
That statute is the 1944 Public Health Services Act. In order to prevent the transmission of communicable diseases, the CDC has the authority under 42 U.S.C. 264(a) to require “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 the [CDC’s] judgment may be necessary.”