Trump judges ignoring black letter law is in fact extremely bad

Since the belief that it’s completely intolerable to have to wear a mask in crowded public spaces during a pandemic is common among journalists as well as Republicans, yesterday’s termination of the CDC’s mask mandate for transportation by fiat will not get the negative attention is deserves. But whatever you think of the policy on the merits, it is very, very, very bad:

Health Freedom turns on a federal law that empowers the CDC to “make and enforce such regulations as in [its] 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.”

This statute also gives several examples of actions that the CDC is allowed to take, including regulations providing for “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” as well as any “other measures” the CDC determines “may be necessary.”

So this law is broadly worded, and it specifically gives the CDC the power to enact “sanitation” regulations that protect the public health. Mizelle gets around the law’s broad wording largely by defining the word “sanitation” very narrowly and misreading other portions of the statute.

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In case there’s any doubt that Mizelle is not operating in good faith, the next segment of her opinion erases any doubt. Mizelle invents a distinction between CDC regulations governing “property” and CDC regulations governing “an individual’s liberty interests” that is directly counter to the statutory text.

As explained above, the CDC’s power to require masks on mass transit flows from a statute (42 U.S.C. § 264(a)) which permits the CDC to “make and enforce such regulations as in [its] judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases.” Mizelle claims that this provision of the statute must be read to only permit the CDC to regulate “property” because it is followed by three other provisions (42 U.S.C. § 264(b–d)) that give “the CDC power to directly impose on an individual’s liberty interest.”

But this reading of the statute is plainly wrong. The provisions she cites are placing limitson the general authority over property and individuals that is granted in the first part of the statute.

This opinion is not “wrong” in the sense of an appellate court reading a broad, abstract constitutional provision in a way that one disagrees with. It’s wrong in that its “reading” of statutory text is just flatly wrong. The claim that mask requirements are not “sanitation” requirements is silly, and even if one agrees to overlook this arguendo the statute explicitly authorizes the CDC to take “other measures.” The CDC’s mandate was clearly and unquestionably authorized by statute, and a single federal trial judge usurping the authority of the more electorally accountable branches is appalling, whatever you think of the mask mandate on the merits.

It should also be said that while Mizelle is certainly unqualified to be a federal judge, the COVID-related statutory analysis of Columbia, Harvard and Oxford’s Neil Gorsuch was no better. Republican judges simply think that they should be in charge of everything irrespective of any legal text to the contrary, and pundits who are happy to go along when they happen to land on a policy outcome they also like isn’t helping.