Trump judge decapitates CDC authority, makes health policy | Editorial
If you say you can’t get sick from semantics and judicial windbaggery, think again: Your fellow commuters probably aren’t wearing masks today because a district judge in Florida invented her own definition of the term “sanitation” last week.
That judge, Kathryn Kimball Mizelle, struck down the CDC’s transportation mask mandate on a legal basis so flimsy it seemed invented for the occasion, and her foundation of sophistry and mush is a sterling example of how Trump-appointed ideologues legislate from the bench.
The backdrop: The Public Health Service Act of 1944 — with subsequent laws and regulations — gave the Centers for Disease Control the authority to fight communicable diseases. So Covid hit, and years after the CDC deemed that “a person must wear a mask while boarding, disembarking, and traveling on any conveyance into or within the United States,” the requirement was challenged in a suit filed by a conservative group and two women who said masks caused them anxiety.
Enter Mizelle, a 35-year-old jurist on a lifetime gig because she worked for a law firm closely associated with Donald Trump.
Among other things, the judge ruled the CDC did not have the legal authority to impose the mandate because it did so without first seeking public comment. In other words, during an outbreak that ultimately killed a million Americans, the CDC should have waited 30 days to hear what the public had to say about it.
But Mizelle also found that a mask does not fall within the bounds of “sanitation.” She ruled that the word only specifies “measures that clean something, not ones that keep something clean.” She actually wrote this sentence: “Wearing a mask cleans nothing.”
She agrees that the CDC is permitted by law to require businesses to clean up contaminants that can spread disease. But in her interpretation, the law does not permit the CDC to actually prevent such contamination from occurring in the first place.
Ilya Somin, a conservative professor from George Mason University, wrote “It seems to me that mandatory masking to prevent the spread of a respiratory virus at least plausibly fits within the meaning of ‘sanitation.’”
Or as the conservative National Review put it, “Her legal reasoning in invalidating the mandate is not as convincing as it will be popular.”
Except it’s not necessarily popular. We are all sick of masks, but an AP poll released Wednesday found that 56% of Americans favor a mandate for public transportation, while only 24% are opposed.
It’s fair to argue that the mandate wasn’t always firm, such as whenever the drinks cart was rolled down the aisle. But if you’re a commuter with a vulnerable person at home, you appreciated seeing others masked up each morning on the train.
Judging by Mizelle’s bad-faith argument, she just didn’t like the existing policy, so she invented a justification for erasing it. And that should alarm anyone who cares about the role of the judiciary — even those who are spared from sitting beside fellow travelers who cough their guts out on the Pascack Valley Line.
It is not likely that Mizelle is as obtuse as her decision suggests, and it could be reversed on appeal. But this wasn’t exactly her wheelhouse: The American Bar Association rated her unqualified from the moment she was nominated; she had only eight years of practicing law –she couldn’t even qualify for partner at her own firm – but Trump picked her because she clerked for Clarence Thomas and other members of the Federalist Society.
And she was confirmed while Trump was a lame duck, two weeks after the election was called for Joe Biden, because Mitch McConnell and the Republican majority in the Senate passed her in a 49-41 vote.
Paul Waldman said it best: “It’s not just that Trump chose a bunch of unqualified far-right partisans, though he did,” the Washington Post columnist wrote last week. “The deeper problem is . . . Trump’s judges have embodied his perspective on the American system of government, which is that there is nothing inherently worthwhile about any of it.
“There are no principles worth adhering to, no systems that should command respect, and no rules worth obeying if you don’t like the outcome those rules produce.”
Perhaps a few Trump appointees may turn out to be good judges, but in this instance, the interests of the American people were torpedoed by one who is openly hostile to the regulatory authority of the CDC. Elections have consequences, but that doesn’t mean the country should be forever doomed by the toxic worldview of a disgraced president.
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