A federal judge in Florida stirred controversy Monday by striking down the Biden administration’s mask mandate for public travel in a ruling that critics derided as overly formalistic and divorced from the health imperatives of a global pandemic.
In a 59-page decision, Tampa-based U.S. District Judge Kathryn Kimball Mizelle, a Trump appointee, ruled that the measure went beyond the Centers for Disease Control and Prevention’s (CDC) authority.
The opinion drew criticism on multiple fronts, ranging from personal attacks over the 35-year-old judge’s youth and qualifications for the bench, to accusations of judicial overreach.
For some legal experts, though, the most contentious aspect of the ruling was what they viewed as Mizelle’s flawed approach to an interpretative method known as textualism that led her to unduly narrow the scope of a landmark public health law.
“I do think on the merits the decision is quite troubling, especially the statutory interpretation,” said Michael Dorf, a law professor at Cornell University.
In her ruling Monday, Mizelle cited several reasons for striking down the CDC mandate. She faulted the agency for bypassing the normal rulemaking procedure. She also concluded the CDC had not provided an adequate legal basis for its policy, which required masks for travel on planes, trains and buses.
But the part of the decision that drew particular ire was Mizelle’s interpretation of a 1944 federal law known as the Public Health Service Act (PHSA). Mizelle’s ruling largely turned on the meaning of the word “sanitation,” which is not defined in the statute.
To establish its meaning, Mizelle turned to dictionary definitions and reasoned that among two competing senses of the word — to “keep something clean” or to “clean something” — that the latter was the proper definition.
“The context of (the PHSA provision) indicates that ‘sanitation’ and ‘other measures’ refer to measures that clean something, not ones that keep something clean,” Mizelle wrote. “Wearing a mask cleans nothing. At most, it traps virus droplets. But it neither ‘sanitizes’ the person wearing the mask nor ‘sanitizes’ the conveyance.”
This central conclusion in Mizelle’s decision drew a wide array of critics.
Among them was Dorf, of Cornell, who argued that the meaning of “sanitation” in the text is ambiguous. Under long standing Supreme Court doctrine, that ambiguity, in turn, should have entitled the agency to great deference by the court.
“She looks at sanitation and says it has these two meanings. She then goes through an elaborate set of arguments why she thinks the first meaning is the better one. But then she says it’s unambiguous, and therefore the agency isn’t entitled to deference,” he said. “But I’ve got to say, I was not at all persuaded that she had eliminated the ambiguity.”
He also criticized her textual analysis as detached from Congress’s aim of handing power to the CDC to safeguard public health.
“It’s especially wooden given that [her ruling] is all about, what do these words mean relative to these other words, as opposed to what do these words mean in the context of Congress trying to solve a problem here — the problem being that sometimes there are deadly diseases floating about,” he said. “Why on earth would they want to limit it to cleaning in this one sense as opposed to taking the measures that are effective?”
“I found that the worst, least persuasive piece of the opinion was that part,” he said.
Daniel Walters, a law professor at Penn State University, called Mizelle’s approach “so divorced from the text of the statute that it doesn’t deserve to be called textualism.”
“You can’t just splice the statute into a bag of words, consult a dictionary, pick out your favorite definition, and call that textualism,” Walters said. “Yet that is what the court did, and it had the audacity to tell people that they’re unordinary if they don’t agree with that ordinary interpretation.”
The Justice Department on Tuesday night said it plans to appeal the ruling if the CDC determines that the mask mandate “remains necessary for public health.”
“The Department continues to believe that the order requiring masking in the transportation corridor is a valid exercise of the authority Congress has given CDC to protect the public health,” the Department of Justice (DOJ) said in a statement. “That is an important authority the Department will continue to work to preserve.”
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Judge’s "textualist" ruling on airline mask mandate sparks backlash https://t.co/2d21nzuuwl pic.twitter.com/ofYBOpbenZ
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