We are supposed to govern ourselves through our elected representatives. Unelected judges are supposed to decide cases, not make policy.
We are supposed to govern ourselves through our elected representatives. Unelected judges are supposed to decide cases, not make policy.
A s a matter of policy, I could not agree more with Judge Kathryn Kimball Mizelle’s opinion that the Biden administration’s mask mandate is both imprudent and obliterates the traditional division of authority between the federal government and the states. Mizelle, a Trump appointee, is also right that the manner in which the mandate was issued makes a mockery of the Administrative Procedures Act. Still, her legal reasoning in invalidating the mandate is not as convincing as it will be popular. That’s because the weakest parts of her ruling are the two most important ones: the opening act that identifies the wrong, and the finale that pronounces the remedy.
Judge Mizelle begins with a strained contention that there is a textual disconnect between what Congress’s statute authorizes and what the administration, through the CDC, has mandated. She ends with a nationwide invalidation of the rule — i.e., a decree by a single, politically unaccountable federal judge in a single district in central Florida, that purports to transcend this discrete case involving a group of private plaintiffs, and to nullify the politically accountable president’s action on a matter that the court concedes is within Congress’s constitutional authority to regulate and that Congress has explicitly entrusted to the judgment of the executive branch.
We don’t have to wonder whether, if a progressive judge did such a thing to undo the action of a Republican president, there would be vehement objection among Republicans and constitutional conservatives. It has happened. Like clockwork, Obama-appointed judges spent the Trump years presuming to issue nationwide injunctions against executive orders on immigration and border-security matters — orders based on statutes that unambiguously left these matters to the president’s discretion.
It is no easy thing to distinguish what Judge Mizelle has done from what conservative commentators, such as moi, railed against from 2017 through 2020, even if it is also true that the judge is more right than wrong on the merits.
The case boils down to whether the mask mandate is authorized by Section 264 of Title 42, U.S. Code. The key subsection is (a), though, as we will see, subsections (b) through (d) are relevant, too. Section 264(a) states:
The Surgeon General [and the Centers for Disease Control and Prevention (CDC)], with the approval of the [Secretary of Health and Human Services (HHS)], is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession. For purposes of carrying out and enforcing such regulations, the [CDC] may 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.
(Emphasis added to highlight what Mizelle sees as the salient terms. Also, I’ve inserted the CDC in brackets because, in 2020, a federal regulation [42 CFR §70.2] delegated to it this statutory authority.)
Textually, Judge Mizelle reasons that the mask mandate can only be justified either as a sanitation measure to prevent the transmission and spread of Covid, or as some other measure that the statute prescribes as a catch-all — i.e., a measure not specified but similar to the ones that are specified (viz., inspection, fumigation, disinfection, sanitation, extermination, and destruction). The judge suggests that the Biden Justice Department concedes this point; it would be more accurate to say that DOJ (1) acknowledges the obvious — i.e., that the mask mandate is not an inspection, fumigation, disinfection, extermination, or destruction measure — and (2) agrees that the mandate may indeed be justified as a sanitation or other measure. DOJ has not conceded, however, that the proper construction of §264(a) is as narrow as Mizelle would have it — and, in my view, DOJ is right about that.
From her dubious premise, Mizelle theorizes that sanitation has two different meanings: to cleanse something or to preserve its cleanliness. She frames this difference as if it were a tension that must be resolved in favor of one alternative meaning or the other. A more commonsense construction of sanitation would be that of a word with two closely related, commonly understood meanings, that can easily be harmonized.
Finally, Mizelle reasons that Congress settled on the “cleanse something” meaning of sanitation, to the exclusion of the “preserve cleanliness” meaning. Therefore, she surmises, the mask mandate cannot be justified because no one even claims that masks cleanse — or cure — people who are infected with Covid-19; rather, masks are purported to be a preventive measure. And just as the mandate fails as a sanitation measure, the judge reasons that it also fails as an other measure. By Mizelle’s lights, when §264 is read as a whole, it becomes clear that subsection (a) prescribes only measures aimed at cleansing (or purging) infection, while measures aimed at preventing infection are prescribed in subsections (b) through (d). The latter subsections are not offered in the mandate’s defense because, as we’ll see, their coverage is limited to discrete categories of people, whereas the Biden mandate seeks to cover nearly everyone.
Judge Mizelle’s textual theory is not frivolous. She does, as she says, engage in a rigorous analysis of the statute. But she is still wrong, creating rather than resolving ambiguity.
To begin with, it is simply not the case that the mandate may only be justified as a sanitation or other measure. The statute starts out by saying, simply and clearly, that the CDC “is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases.” Put aside whether you believe, as I do, that masks are ineffective. There is no doubt that (1) the mask mandate is intended to be a regulation “to prevent the . . . transmission or spread” of Covid, and (2) it is intended as such by the CDC, in whose judgment Congress explicitly vested the decision-making authority.
Mizelle tries to get around this straightforward grant of authority by artificially bifurcating §264(a). In her construct, the first part (just described in the last paragraph) is reduced to a hortatory acknowledgement of CDC power to issue regulations; that is followed by a second part, which prescribes the actual regulatory measures the CDC is permitted take: inspection, fumigation, disinfection, sanitation, etc. The judge maintains that this is how the Supreme Court recently directed lower courts to construe §264(a) in another Covid-related mandate case, Alabama Association of Realtors v. HHS (2021).
To the contrary, neither the text of the statute nor the high court’s opinion is that constrictive. Alabama Association of Realtors dealt with President Biden’s eviction moratorium, which was also issued as a CDC mandate. Unlike masking, which is patently a measure to prevent the spread of infection, the moratorium had nothing to do with preventing disease transmission. It was a progressive economic regulation disguised as a Covid-prevention measure. In rejecting the moratorium, the Court explained that it did not fit within the clear objective of §264(a) to “prevent[] the interstate spread of disease by identifying, isolating, and destroying the disease itself”; the justices elaborated that the CDC’s authority to pursue this objective was “informed by” the statute’s list of specific measures — inspection, fumigation, etc.
Pace Judge Mizelle, informed by is not synonymous with limited to. The statute says the CDC has authority to issue regulations intended to prevent the spread of disease; it then offers what the Supreme Court described as list of measures “illustrating the kinds of measures that could be necessary” (emphasis added). That is, the list is illustrative; it is neither limiting nor exhaustive — which, obviously, is why Congress appended the catch-all other measures. It cannot be that these measures are limited to cleansing rather than preventing disease. Again, they are promulgated in the context of an express congressional grant of authority “to prevent” transmission or spread (emphasis added).
Consequently, the CDC would have authority to issue a mask mandate to try to prevent the spread of Covid even if §264(a) did not prescribe sanitation as an illustrative measure. But let’s assume for argument’s sake that Mizelle is right in concluding that the validity of the mandate depends on whether it qualifies as the kind of sanitation Congress prescribed as a permissible kind of regulation. The judge would still be wrong in insisting that the two definitions of sanitation are in tension with each other.
In point of fact, the two meanings of sanitation are closely connected and readily harmonized in the context of infectious disease. They connote steps taken “to isolate and destroy the disease itself” — to borrow the Supreme Court’s description of what Congress was trying to achieve in §264(a). There is no reason to believe §264(a) was understood as conveying only one commonly understood meaning of the term sanitation (namely, to cleanse), to the exclusion of the other, closely related meaning of sanitation (to maintain cleanliness).
Because there is actually no ambiguity to resolve, Judge Mizelle’s stronger points about the structure and history of §264 are unavailing. She is quite correct that subsections (b) through (d) relate to measures to prevent the spread of infectious disease that may be imposed on categories of persons — basically, people coming into the United States from foreign countries, or people reasonably believed to be infected. Clearly, the CDC did not rely on subsections (b) through (d) because it did not want the mandate to be limited to those categories of persons.
But so what? For purposes of statutory construction, that observation would only be relevant if subsection (a) were ambiguous about whether the CDC is authorized to issue regulations that are necessary in its judgment to prevent the spread of infectious disease. If there were truly ambiguity to be resolved, it would be reasonable for Mizelle to deduce that preventive regulations, such as compulsory masking, may only be applied to people who — consistent with subsections (b) through (d) — have just entered our country or are already known to be sick. But since subsection (a) is not ambiguous, Mizelle is not at liberty to interpret it based on her deductions about the latter three subsections, rather than based on what it plainly says.
Similarly, Mizelle is correct that Congress’s objectives in enacting §264 some 70 years ago were modest, and that the statute until recently was rarely invoked. It probably was not in the contemplation of the enacting Congress that the statute would be used as the basis for a sweeping mask mandate. All that said, though, Mizelle’s reliance on the “major questions doctrine” as a rationale for invalidating the mandate is misplaced.
As she observes, under the major-questions doctrine, “courts ‘expect Congress to speak clearly’ if it assigns decisions ‘of vast economic and political significance’ to an administrative agency.” Tellingly here, however, Judge Mizelle is quoting again from Alabama Association of Realtors, where the Biden administration was implausibly claiming that Congress, in authorizing the CDC to take steps to stem the spread of infectious disease, had somehow greenlighted a mortgage moratorium.
In stark contrast, the case before Mizelle involves a mask mandate, a measure directly and obviously intended to limit the spread of Covid. In §264(a), Congress did in fact speak clearly in authorizing the CDC to prescribe such measures. That Congress may not have realized that the CDC would one day, in the midst of a once-in-a-century pandemic, quite logically rely on that clear language to prescribe a mask mandate is beside the point.
In my view, Judge Mizelle is in error in holding that the Biden mask mandate is not supported by §264(a). To repeat, what matters on that score is whether the regulation faithfully draws on the statutory text; that is, we are talking about whether the mandate is legal, not whether it is sound policy. Textually speaking, the CDC was on firm legal footing.
That, however, is not the end of the matter. Judge Mizelle is correct that the Biden administration is in flagrant — I would say arrogant — violation of the Administrative Procedures Act. The APA dictates that before a regulation goes into effect, there must be a 30-day notice-and-comment process: The relevant agency must first publicly announce its regulatory proposal in the Federal Register, after which there must then be a comment period. The expectation is that the agency will respond to substantial public comments; that includes, if appropriate, incorporating them into its ultimate regulation.
The Biden administration ignored this requirement. There is no justification for its having done so, and the justification it has offered — essentially, that the mask mandate was a commonsense emergency measure — insults the intelligence. As Mizelle recounts, the mandate was not issued until nearly a year after the Covid pandemic took hold, at a time when case numbers were decreasing. Vaccines were becoming widely available. Furthermore, the assumption behind the APA’s notice-and-comment requirement is that it democratizes and improves the regulatory process. The idea is that we are not to be dictated to by unelected technocrats, and that regulations must be sensitive to the concrete difficulties they portend for the people expected to comply with them.
The Biden administration did not comply with the APA because it did not want to grapple with the obvious policy objections to its mask mandate. Noncompliance, however, is no small thing. In 2020, the Supreme Court invalidated President Trump’s recision of DACA (the Deferred Action for Childhood Arrivals program), which immunized categories of illegal immigrants from enforcement action. The Court nullified Trump’s executive discretion even though the Obama administration had not complied with the APA in establishing DACA in the first place.
The Biden administration was thus under a greater obligation to follow the APA in formally promulgating its mandate. So regardless of whether I’m right that §264(a) would authorize a mask mandate, Judge Mizelle would still be right to set the regulation aside because of the invalid process by which the mandate was imposed.
Alas, that is not the end of the matter. There is the question of how extensive the remedy should be.
Mizelle is a politically unaccountable judge, in a single one of the nation’s 94 federal districts, who is presiding over a litigation brought by a private party against the government. That litigation centers on a matter of policy that the Constitution commits to the political branches (by authorizing legislation under the commerce clause), and that Congress has statutorily entrusted to the judgment of the executive branch. Yet Judge Mizelle claims the authority not merely to decide the question before her in the four corners of the case, but to vacate the mandate — in effect, to issue a nationwide injunction against its enforcement.
Throughout the Trump administration, Republicans, constitutional conservatives, and even some Supreme Court justices questioned the growing propensity of district judges to issue nationwide injunctions (Justice Clarence Thomas describes them as “universal” injunctions), which invalidated directives issued by the president in reliance on both his own constitutional power and unambiguous congressional delegations of authority to the executive. Now that the shoe is on the other foot, though, it has become fashionable on the right to embrace these flexings of judicial muscle — only after the customary hand-wringing about what profound misgivings we have about this trend (or “skepticism,” as Judge Mizelle refers to her claimed misgivings before somehow managing to overcome them).
There may be instances when nationwide injunctions are appropriate. Perhaps there is a worthy argument for them when a fundamental right is at stake. But that is not the mask-mandate case. Though it has nationwide implications, this case involves an unremarkable statutory dispute over the extent of the CDC’s power, under circumstances where (a) the CDC undoubtedly has significant regulatory power, and (b) the power of the states to issue very restrictive health-care-related directives is even broader.
I don’t believe a principled position on nationwide injunctions by district judges can hinge on whether one approves or disapproves of the policy result. Presumptively, the judges should either have this power or they should not. I believe they should not. To my mind, Judge Mizelle should simply have ruled that the mandate is unenforceable against the plaintiffs in the case before her. Then it would be up to (i) the Biden administration to decide whether to appeal, (ii) other potential litigants to decide whether to file similar lawsuits against the mandate, (iii) Congress to decide whether curative legislative action should be taken, and (iv) the public to decide whether the Biden administration is abusing its power.
That’s the way things are supposed to work in our system. We are supposed to govern ourselves through our elected representatives. Unelected judges are supposed to decide cases, not make policy — particularly policy that Congress expressly leaves to the judgment of the executive, not the judiciary.