Judge Throws Out Federal Mask Mandate for Public Transportation

[SuperMatt]

So the CDC should be able to do what they want, when they want, even if it runs counter to the law simply because of their stated purpose?

I never said that. And you know it. Again, if you can find a single legal expert who thinks this judge properly interpreted the law, let’s see it. Then we can discuss that instead of you tossing out bombs.

As they say: put up or shut up.

 

[Herdfan]

I never said that. And you know it. Again, if you can find a single legal expert who thinks this judge properly interpreted the law, let’s see it. Then we can discuss that instead of you tossing out bombs.

As they say: put up or shut up.

I am not a lawyer. So I have no idea if her reasoning was sound.

But you posted the purpose of the CDC. What does that have to do with the case? If they exceeded their authority, they exceeded their authority and their purpose is irrelevant.

 

[SuperMatt]

I am not a lawyer. So I have no idea if her reasoning was sound.

But you posted the purpose of the CDC. What does that have to do with the case? If they exceeded their authority, they exceeded their authority and their purpose is irrelevant.

Here is why the purpose of the CDC matters. The purpose is written directly into the law; preventing the spread of communicable diseases. It therefore IS the LAW. And yet the judge doesn’t seem to consider that part of the law. All she considered was a single paragraph, and then decided to redefine a word in that paragraph, and disregard some other words she didn’t like to come to a tortured reasoning that convinced nobody except anti-mask true believers who don’t care whether her reasoning is sound or not.

Specifically, the law says that if the government is trying to prevent the spread of communicable diseases, it can "provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary."

The administration argued that masks qualified as "sanitation" under the law, but Mizelle disagreed, opting for a much narrower definition of the term that would exclude measures like face coverings. Legal experts say her interpretation missed the mark.

"If one of my students turned in this opinion as their final exam, I don't know if I would agree that they had gotten the analysis correct," said Erin Fuse Brown, a law professor at Georgia State University.

"It reads like someone who had decided the case and then tried to dress it up as legal reasoning without actually doing the legal reasoning," she added.

I added the bold to show why the purpose of a law, especially when it is written into the law, is necessary to properly interpret it. In this case, the CDC only has the power in the first place because it is trying to prevent the spread of a communicable disease. So it couldn’t send out a mask mandate just because it thinks people look better that way. Hopefully this can show you why the purpose is critical.

 

[Spike]

Having left the US a little over four years ago, I only saw the pandemic response remotely. What is appalling to me (and most people where I now live) is that a judge with no medical knowledge and even less judicial experience can change health measures immediately. In the country where I now live, we have very specific metrics set by national health professionals for every change that can happen. We just had a partial lift on the mask mandate due to death rates and ICU beds filled. The only way a judge could overrule this would be due to action being taken that did not follow the metrics. All of this discussion about what can be done arises from the lack of an actual public health policy with legal control.

The vaccine rollout here was very deliberate, all vaccinations delivered by the health service and every single resident was notified when to go for each vaccination. There are no communities that had less access.

What this points out is that the US has no real health policy, which does, of course, open up the potential for even worse problems in the future. I don't know how this can be fixed, my own cynical view is that the US needs a complete restructuring, i.e., a new constitution, before there can be reasonable efforts.

 

[Herdfan]

In the country where I now live, we have very specific metrics set by national health professionals for every change that can happen.

We did not. Some states, including mine, tried. But sometimes if they didn't get the results they wanted, they changed the metrics. Basically made them useless.

We definitely needed them. Not really sure why the CDC didn't have a plan to deal with a pandemic. It is like they know the science, but completely whiffed on the human component.

 

[Roller]

We did not. Some states, including mine, tried. But sometimes if they didn't get the results they wanted, they changed the metrics. Basically made them useless.

We definitely needed them. Not really sure why the CDC didn't have a plan to deal with a pandemic. It is like they know the science, but completely whiffed on the human component.

The Obama administration did have a plan, but it was ignored by the Trump administration. The CDC hasn't done a stellar job under Biden, but there's no comparison to the dysfunctional mess of a response under the Trump administration, which included appointing people like Scott Atlas, who had no relevant expertise, and the president advocating dangerous approaches. And anything the CDC now does is so politicized that the likelihood of their guidance being followed is low, especially in states like Florida, where the surgeon general violates his oath as a physician every time he speaks.

 

[Herdfan]

The Obama administration did have a plan, but it was ignored by the Trump administration. The CDC hasn't done a stellar job under Biden, but there's no comparison to the dysfunctional mess of a response under the Trump administration, which included appointing people like Scott Atlas, who had no relevant expertise, and the president advocating dangerous approaches. And anything the CDC now does is so politicized that the likelihood of their guidance being followed is low, especially in states like Florida, where the surgeon general violates his oath as a physician every time he speaks.

The CDC should have had metrics sitting on a shelf no matter who was President.

I bet the military has a battle plan sitting there in case Canada invades us, but the CDC doesn't have a set of metrics for an airborne disease?

 

[SuperMatt]

Not really sure why the CDC didn't have a plan to deal with a pandemic.

Let’s go back in time... all the way to 2018:

Sudden Departure Of White House Global Health Security Head Has Experts Worried

Rear Adm. Tim Ziemer is among the departures since John Bolton became head of the National Security Council.

www.huffpost.com

We had a part of the National Security Council specifically set up to handle a global pandemic... and Trump (through John Bolton) disbanded it. And if you read that 2018 article, you can see many dire warnings about how this would hurt our pandemic response. They turned out to be very prescient.

Many agencies have to work together to handle a pandemic; the CDC cannot do it on their own.

 

[Roller]

The CDC should have had metrics sitting on a shelf no matter who was President.

I bet the military has a battle plan sitting there in case Canada invades us, but the CDC doesn't have a set of metrics for an airborne disease?

A specific set of metrics for a new disease about which the science was changing daily? That's not how it works. But there were people at the CDC, like Nancy Messonnier, who sounded the alarm in February 2020 and were forced to leave. Had the administration paid attention to her and followed the playbook that was left for them instead of insisting the pandemic would end quickly and throwing responsibility to the states, many lives would have been saved.

 

[SuperMatt]

Here is some more insight into why the DoJ is slow-rolling their response to this judge’s ruling. It involves underwear?

Why the government's slow move to appeal the mask decision may be a legal strategy

One law professor has a theory about the Justice Department's slow response — and it all goes back to a case involving "heavy knitted underwear" from the 1940s.

www.npr.org

The CDC's mask requirement on planes, trains and other modes of transportation was set to expire May 3anyway. Without a mask mandate in effect, in appealing the case, Vladeck says, "the government can say, 'Look, we're not going to have a chance to argue why Judge Mizelle's ruling was incorrect. Therefore, the proper thing to do is to wipe that ruling off the books and just dismiss this entire lawsuit.' "

This idea goes back to a lawsuit involving Munsingwear, a Minnesota-based underwear company. In the mid-1940s, the government sued the company, alleging it was violating wartime price regulations by overpricing its "heavy knitted underwear," according to news reports from the time. But it took years for the case took to go through the appeals process, and by then the products were no longer subject to price controls, so the controversy was moot.

Enter the Munsingwear doctrine, which the Supreme Court established in its 1950 United States v. Munsingwear decision. Basically, when a dispute becomes moot during the appeals process, the appellate court should generally vacate the lower court's ruling.

Basically, if they wait this out, it could be as if the ruling never happened.

 

[Cmaier]

Here is some more insight into why the DoJ is slow-rolling their response to this judge’s ruling. It involves underwear?

Why the government's slow move to appeal the mask decision may be a legal strategy

One law professor has a theory about the Justice Department's slow response — and it all goes back to a case involving "heavy knitted underwear" from the 1940s.

www.npr.org

Basically, if they wait this out, it could be as if the ruling never happened.

Maybe. But there’s also a doctrine that if the issue is the sort of issue that, by its nature, comes and goes relatively quickly (as compared to the judicial process), then there actually really is a case or controversy that needs to be resolved. So the counter-argument is that, because of covid variants, the CDC may need to reinstitute the restrictions at any time. So

 

[BigMcGuire]

The Metro here in Southern CA was quick to not require masks and then, .... require them again just a few days later.

UCLA doesn't require masks anymore for fully vaccinated but a lot of people still wear them when in close quarters like a lab.

 

[Herdfan]

Basically, if they wait this out, it could be as if the ruling never happened.

That may work, but in the case of Munsingwear, the situation wasn't going to be repeated. In this case, the CDC has specifically stated they need this overturned in case they want to do it again.

 

[SuperMatt]

That may work, but in the case of Munsingwear, the situation wasn't going to be repeated. In this case, the CDC has specifically stated they need this overturned in case they want to do it again.

You are missing how this works.

They slow-roll the appeal until the mask ban would have expired anyway (sometime in May I believe?). The appeal gets to the appeals court and is overturned because it is now a moot point.

 

[Herdfan]

You are missing how this works.

They slow-roll the appeal until the mask ban would have expired anyway (sometime in May I believe?). The appeal gets to the appeals court and is overturned because it is now a moot point.

Is it overturned or vacated?

From the article you posted:

Enter the Munsingwear doctrine, which the Supreme Court established in its 1950 United States v. Munsingwear decision. Basically, when a dispute becomes moot during the appeals process, the appellate court should generally vacate the lower court's ruling.

Vacate means it didn't happen. So that same judge could simply hear the case again and rule the same way starting the process all over again.

 

[SuperMatt]

Is it overturned or vacated?

From the article you posted:



Vacate means it didn't happen. So that same judge could simply hear the case again and rule the same way starting the process all over again.

Yes, vacated - meaning it doesn’t even count as precedent - which is a very good outcome for preserving the CDC’s powers.

As for the exact same judge getting the same lawsuit, anything is possible. In fact, monkeys could also fly out of my butt.

 

[Cmaier]

That may work, but in the case of Munsingwear, the situation wasn't going to be repeated. In this case, the CDC has specifically stated they need this overturned in case they want to do it again.

Agreed. As I mentioned above, there is a legal principle that if a situation is “capable of repetition, yet evading review,” then the court should address it, regardless of the fact that, at the moment, it might appear to be moot.

This situation here - between waves of variants there is little need for masking on planes, but the day after the appeals court might vacate the lower court’s opinion a new variant could show up - is the type of situation where the Supreme Court, among other courts, has applied this principle.

Little chance an appeals court does not address the merits.

 

[Roller]

Ending the mask mandate on public transportation will be detrimental from a public health perspective. The newest strains of SARS-CoV-2 have been increasingly transmissible, with the only saving grace being that their virulence seems to be less than for pre-Omicron variants. Even on aircraft, which tend to have effective air filtration, there's a risk to passengers while the plane is on the ground, not to mention while waiting in line or in the jetway. Buses and trains are even worse.

That this has become dominated by politics and legal arguments demonstrates the monumental selfishness of many Americans, who don't care if they transmit to people who can't be protected by vaccines because of age or diminished immunity.

 

[Cmaier]

Ending the mask mandate on public transportation will be detrimental from a public health perspective. The newest strains of SARS-CoV-2 have been increasingly transmissible, with the only saving grace being that their virulence seems to be less than for pre-Omicron variants. Even on aircraft, which tend to have effective air filtration, there's a risk to passengers while the plane is on the ground, not to mention while waiting in line or in the jetway. Buses and trains are even worse.

That this has become dominated by politics and legal arguments demonstrates the monumental selfishness of many Americans, who don't care if they transmit to people who can't be protected by vaccines because of age or diminished immunity.

I think it will have little statistical effect. The average annual time spent by a person on an airplane is far less than the average time a person now spends unmasked in restaurants and other locations. And not every locale is removing mask requirements on local public transportation (which the judge has no say over).

That said, the problem from my perspective is that if you have to travel cross-country, now, you have little opportunity to protect yourself. You can wear a mask yourself, which provides some protection, but if the person sitting next to you is infected and coughing the whole time, what are you supposed to do?

Airlines could have chosen to keep the mandate, or to designate flights as masked, or require testing, etc. But they chose not to. So I say fuck the airlines.

 

[Roller]

I think it will have little statistical effect. The average annual time spent by a person on an airplane is far less than the average time a person now spends unmasked in restaurants and other locations. And not every locale is removing mask requirements on local public transportation (which the judge has no say over).

That said, the problem from my perspective is that if you have to travel cross-country, now, you have little opportunity to protect yourself. You can wear a mask yourself, which provides some protection, but if the person sitting next to you is infected and coughing the whole time, what are you supposed to do?

Airlines could have chosen to keep the mandate, or to designate flights as masked, or require testing, etc. But they chose not to. So I say fuck the airlines.

We probably will never know the magnitude of the effect because so many cases go unrecognized or unreported and because there is essentially zero contact tracing. As you say, some jurisdictions are maintaining their mask mandates, but continual flip-flops, the strike-down of the federal public transportation requirement (even if is reversed), and the general attitude of the public, mean that more transmission will occur on airplanes, trains, and buses.

The best course of action for those who need to fly cross-country is to wear a high quality N95 or equivalent mask, which lessens the risk. It'd be fun to sit next to an unmasked adult on a plane, hack away during the flight, and tell them it's just TB when they ask.

I think it'd be tough for the airlines to maintain masking and/or vaccination requirements if the federal government doesn't mandate them. But I definitely condemn them for announcing the end of the mask mandate mid-flight, as some did. That was extraordinarily unfair and potentially injurious to passengers who boarded with the expectation that others would wear masks throughout the flight. I'd pay a premium to fly on designated masked/vaccine-proofed flights, but I doubt that will happen.

I shudder to think what will happen if a future SARS-CoV-2 variant or other pathogen is not only highly transmissible, but also more likely to cause severe illness or death.