The Biden Mask Mandate Goes Down A federal judge says the CDC exceeded its statutory authorit
This has been a rough few months for the Centers for Disease Control and Prevention’s Covid-19 orders. First its eviction moratorium went down last year. On Monday it lost again, as a federal judge blocked the agency’s mask mandate on airlines and other forms of public transportation (Health Freedom Defense Fund v. Biden).
Judge Kathryn Kimball Mizelle ruled that the CDC exceeded its statutory authority and never clearly explained its justification for the broad mask mandate, among other legal infirmities. It’s a strong opinion based in a careful reading of the Public Health Service Act of 1944, which was the basis for the CDC’s order.
Judge Mizelle says the agency stretched the meaning of the word “sanitation” in the law, which was never intended to justify such sweeping control over the behavior of millions of Americans. She quotes the words of Jeff Sutton, Chief Judge of the Sixth Circuit Court of Appeals, in the vaccine mandate case that “this is no ‘everyday exercise of federal power.’”
It certainly isn’t, which helps to justify the judge’s national injunction in the mask case. National injunctions should be rare, but it would be hard to narrow, by geography or type of transport, a nationwide mask requirement for all public transportation.
The ruling comes when the mask mandate is a waning health necessity, if it ever was. The CDC recently extended it until May 3, and it is increasingly unpopular with passengers and airline executives as Covid-19 becomes endemic and less lethal. Rather than appeal the ruling and risk a broader defeat, the CDC would be wiser to drop it.
The Biden Administration should also hire more lawyers who understand that the courts are looking more closely at sweeping federal orders that lack clear statutory justification. The Occupational Safety and Health Administration lost its vaccine mandate case at the Supreme Court. President Biden may want to govern with a pen and a phone, a la Barack Obama, but he’ll suffer more legal defeats without a clear command from a law written by Congress.
Correction: An earlier version misstated the agency that imposed the vaccine mandate.
WSJ Opinion: The M
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