(The Hill) – 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’ 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.”
Prior to DOJ’s announcement, several legal experts said it would be risky for the Biden administration to appeal it because that could set a bad precedent in courts of appeals, including the Supreme Court.
“Conservative jurists feel emboldened to push back against agency action that in an earlier era would’ve seemed fairly unremarkable,” said Lars Noah, a law professor at the University of Florida. “So, if appellate courts increasingly endorse textualism, then trial judges needn’t fear reversal for aggressively employing that method.”
“Appealing them risks losing in ways that could leave a more lasting damaging impact,” he added.
Not everyone agreed with the critique of Mizelle’s ruling, to be sure, and some conservative lawmakers and pundits were downright ecstatic with the ruling.
“Thank you Judge Kathryn Kimball Mizelle of Florida for ENDING the mask mandates on planes and trains!” Rep. Lauren Boebert (R-Colo.), a far-right member of Congress wrote on Twitter. “LET FREEDOM REIGN!”
Sen. Marco Rubio (R-Fla.) hailed the ruling, saying it validated his previous endorsement of Mizelle for a position on the federal bench.
“Almost two years ago I enthusiastically pushed Judge Mizelle to be a district court judge,” Rubio wrote on Twitter. “Today she issued a common sense decision that makes me especially proud that I did.”
Among other supporters of Mizelle’s ruling was Katherine Drabiak, a public health law expert and professor at the University of South Florida. Drabiak said the ruling was in line with the history of government health policy, which took a more individualized approach to regulations and sought to tie measures to a particular outbreak, person or location, rather than regulate an entire industry.
“I agree with what the court is saying, that the Public Health Service Act does not give the CDC authority to enact that type of measure,” she said. “Based on what the law is, based on what historical precedent is, I think that the CDC did exceed its authority, and it has failed to abide by different laws.”
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But some critics of Monday’s ruling say it was Mizelle who should be faulted for overreaching. The decision — which imposed a nationwide injunction on the mask mandate — comes amid a roiling debate in legal circles over when such sweeping rulings are appropriate.
Walters, of Penn State University, said he is generally skeptical of nationwide injunctions but allowed that they may be appropriate in certain situations.
“This does not seem to be one of those situations,” Walters said. “Here you have a single unrepresentative judge setting policy for the entire nation. There’s no opportunity now for those who are adversely affected by this injunction to have their day in court. It’s precisely when there is ongoing disagreement where courts need to be particularly wary of ending the debate by stepping in to ‘resolve’ things.”