Fauci Argues for Putting the CDC above the Law

A nthony Fauci is one of those perverse public figures who appears to be remorselessly committed to living down to the expectations of his bitterest critics.

Speaking to CBS News last Thursday, Fauci made a bizarre claim: “The principle of a court overruling a public-health judgment by a qualified organization like the CDC is disturbing in the precedent that it might send.”

Fauci was referring to the ruling by U.S. District Judge Kathryn Kimball Mizelle that the wide-reaching mask mandate imposed by the Centers for Disease Control exceeds the agency’s statutory authority. Because masks have become a Kulturkampf issue, the denunciations were swift and vicious. She doesn’t know anything about infectious diseases! some complained, apparently unaware that the judge had been asked to settle a legal question, not a medical one. Another strange line of criticism focused on the judge’s age: She’s only 35 years old! (Please, don’t tell them how old James Madison was when he brought the Constitution into being.) And of course, the fact that she was appointed to the bench by Donald Trump was taken as disqualifying ipso facto.

But Fauci has not argued that the judge made the wrong decision under the law. He has argued that any decision by a judge that limits the adventures of a “qualified organization like the CDC” is illegitimate — that there should be no legal constraint at all on the CDC.

That is, of course, bananas.

There is such a thing as a public-health emergency, the Covid-19 epidemic was one such emergency, and governments typically are empowered with extraordinary tools to meet extraordinary threats. But those emergency powers must be carefully spelled out under the law — if they are not, then what you have done is to make the rule of law optional.

Emergencies attract constituencies, and Covid-19 has been no different. Democrats have attempted to use the epidemic to permanently expand federal intervention in the economy; student-loan forbearance already has provided more than $200 billion in benefits to college borrowers, an overwhelmingly well-off, high-income group; practitioners of sacralized politics, for whom the N95 mask has become an article of religious attire like a kippah or a wimple, behave as though any reduction in emergency restrictions is an unearned victory for their cultural and political enemies rather than a salubrious sign of progress in the fight against the virus.

Emergencies also attract autocrats. You can find 10,000 examples in history, including in robustly democratic countries such as India, where Indira Gandhi’s semi-permanent “Emergency” led to newspaper censorship, the imprisoning of political opponents, and political abuses of every other conceivable kind. Progressives who are very attached to the Covid-19 emergency should ask themselves what a President Ron DeSantis might do with wide-ranging “emergency” powers that are unreviewable by any court.

The Democrats’ attitude toward emergency powers is an illustration of one of Williamson’s Laws (to which I have not yet assigned a number): “When Democrats are in power, they act like they’ll never be out; when Republicans are out of power, they act like they’ll never be in.”

If you think the CDC should have broader emergency powers than the ones it has, then the law can be amended to enable that. I myself am distrustful of emergency powers in general and would not be inclined to expand any such powers as any federal agency already possesses. But that is a matter for political debate. What Fauci has argued for is making the CDC above the law, pretending that the presence of medical questions somehow eliminates the existence of legal questions.

We need to get our heads straight about this principle, because there are bigger shocks coming down the pike: The question presented by the possibility that the Supreme Court will revisit Roe v. Wade is not — repeat not — whether abortion should be legal in the United States, whether abortion is right or wrong, or whether the Constitution should contain a right to abortion; the question is whether the Constitution does in fact include such a right (which would have surprised 36-year-old James Madison, I am sure) or Roe was a wrongly decided, illegitimate act of judicial lawmaking in the first place. As with the CDC and masks, the argument that this is a medical issue — “Between a woman and her doctor,” they used to say, back when our progressive friends knew what a woman was — is a cynical and fundamentally dishonest attempt to change the subject and ignore the legal question.

But it is legal — not social, not medical, not moral — questions that courts are there to address.

The CDC has a job to do. Lawmaking is somebody else’s job. The “dangerous precedent” being set here is Fauci’s suggestion that this should not be so.