Mask decision should alarm you, no matter how you feel about masks

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Should the federal government have the power to address broad public health emergencies?

Last week, a federal judge effectively answered no.

The judge, Kathryn Kimball Mizelle, who serves on a federal district court in Florida and was appointed by former President Donald Trump, issued a nationwide injunction blocking the government's mask mandate for planes, trains, buses and other forms of public transportation.

No matter how you feel now about masks, you should be alarmed by her decision. Mizelle's ruling could prevent the federal government from effectively and nimbly responding to future pandemics. And long after this pandemic has faded, her approach and rationale could undermine the federal government's authority to confront other big problems, from occupational health and safety to climate change.

The Biden administration has appealed the decision to the 11th Circuit Court of Appeals, but that carries its own risks. Six of the 11 active judges on that court are Trump appointees. A loss there by the Justice Department could permanently weaken the government's authority to respond to health emergencies.

The law provides that the CDC can enforce "sanitation" and "other measures" to achieve this goal. The transportation mask requirement is crucial to the agency's ability to meet its congressional mandate because travelers in a pandemic can unknowingly carry a virus across the country, dispersing it along the way.

Since the New Deal, federal courts have generally declined to strike down reasonable agency regulations. And for good reason. In writing laws, Congress cannot envision or micromanage every possible scenario. Unexpected events — say, perhaps, a global public health crisis — create novel challenges. So, Congress delegates rulemaking power to agencies, which develop and issue evidence-based regulations to combat complex problems.

Agencies do not have, nor should they have, unfettered authority to act, but courts should defer to their reasonable interpretations of federal law. In this case, Congress delegated powers to the CDC, a scientific agency charged with protecting the nation's health.

Mizelle's opinion rejects this longstanding consensus over the way government works. Adopting a strained and tendentious reading of the word "sanitation," she concluded that the CDC exceeded its legal authority. In her view, it was untenable that the "CDC claims a power to regulate how individuals behave in such diverse places as airplanes, train stations, marinas and personal vehicles used in ride-sharing services across town."

In reality, the CDC claims no power that Congress had not explicitly given it. An agency tasked with slowing the interstate spread of a highly infectious virus would regulate interstate travel, which occurs because "diverse places" like airplanes and train stations are often crowded, and passengers are confined for long periods of time.

Mizelle lacks experience or expertise in public health. The CDC, conversely, is staffed by virologists, epidemiologists and other highly respected scientists accountable to the president, who in turn can be held to account by the public. A constitutional democracy is challenged when a lone judge, lacking competence in public health, can unilaterally dismantle a nationwide public health policy during a crisis. We can't think of a worse way for COVID-era masking to end than at the hand of a single federal judge sitting in the Middle District of Florida.

Mizelle is among a cadre of Trump appointees to the federal bench who are using the foil of pandemic public health regulations to dismantle the national government's legal authority to solve problems. They have sought to change underlying principles of administrative law, limiting the type of regulations that agencies can create and letting individual judges substitute their policy views for agencies' reasoned interpretations. Their push includes eliminating the legal doctrine of Chevron deference, laid out in a unanimous 1984 Supreme Court decision that gives federal agencies leeway when interpreting ambiguous or unclear laws.

This campaign starts at the top, with a Supreme Court transformed by Trump's three appointments. In August 2021, as the delta variant surged, the Supreme Court blocked the CDC from enforcing a federal eviction moratorium, which was intended to prevent mass evictions and keep people out of congregate settings where COVID spreads most easily. In January, as the Omicron variant strained hospitals across the country, the Supreme Court barred the Occupational Safety and Health Administration from imposing a vaccination-or-test requirement for large employers.

In these decisions and others, the Supreme Court's most conservative justices have displayed a blasé disregard for precedents and the exigencies of a deadly pandemic, which had killed nearly 1 million Americans as of late last week.

The Justice Department's decision to appeal Mizelle's decision was welcome news. The CDC must have the legal authority to protect public health. But should the appellate court uphold her ruling, the CDC will be seriously hobbled and a ruinous precedent will be set for the entire federal regulatory apparatus. Worse, the Supreme Court might review the case and use it as part of its larger crusade to deconstruct the administrative state.