As 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.
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