Will the End of the Mask Mandate Hobble Our Response to the Next Pandemic?
In reality, the C.D.C. 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.
Under Judge Mizelle’s logic, the agency would also have no authority under existing law to impose a mask mandate in a future pandemic — say if a new and more dangerous variant of the coronavirus strikes, as it might. It wouldn’t matter how deadly the future variant or pandemic was. Or how communicable the disease was in airplanes or trains. Or the effectiveness of masks in slowing spread. Or whether the pathogen evaded vaccines. Her peculiar reading of the statute restricts the C.D.C.’s ability to respond to a future health crisis, handcuffing it when the agency is most needed.
Judge Mizelle lacks experience or expertise in public health. The C.D.C., 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.
Judge 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 Mr. Trump’s three appointments. In August 2021, as the Delta variant surged, the Supreme Court blocked the C.D.C. 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 one million Americans as of late last week.
The Justice Department’s decision to appeal Judge Mizelle’s decision was welcome news. The C.D.C. must have the legal authority to protect public health. But should the appellate court uphold her ruling, the C.D.C. 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.