Legal disaster

The Trump judge’s opinion striking down the airplane mask mandate is a legal disaster

This decision is what happens when judges don’t care what the law actually says.

By Ian Millhiser 

So, you’ve probably heard by now that Judge Kathryn Kimball Mizelle, a Trump-appointed judge in Florida, issued a sweeping opinion striking down the Biden administration’s requirement that passengers wear masks on airplanes, trains, and similar methods of transportation.

This requirement from the Centers for Disease Control and Prevention (CDC) provided that “a person must wear a mask while boarding, disembarking, and traveling on any conveyance into or within the United States,” although it contained a few exceptions. For the moment, it is not in effect, as the Biden administration weighs whether to appeal the judge’s order. Hours after the decision, the country’s four largest airlines dropped their mask requirements — prompting confusion, sometimes mid-flight.

Mizelle is the apotheosis of former President Donald Trump’s approach to selecting federal judges. Appointed to the bench at age 33, Mizelle was fresh off a clerkship for Justice Clarence Thomas and working as an associate at Jones Day, a large law firm closely associated with Trump, when she received her lifetime appointment to the federal bench. At the time, Mizelle had just eight years of experience practicing law — meaning that she had not even yet completed the nine-and-a-half years of practice that Jones Day typically requires for its lawyers to become partners of the firm.

But what Mizelle lacks in experience, she made up for in her ability to rack up conservative credentials. In addition to her Thomas clerkship, Mizelle clerked for two other prominent members of the conservative Federalist Society. At a 2020 speech to that organization, she quipped that paper money is unconstitutional.

Mizelle was also nominated by a president who was about to be repudiated by the American public — Trump officially named her in September 2020, two months before Joe Biden defeated Trump in both the popular vote and the Electoral College. The Senate confirmed her while Trump was a lame duck, a week-and-a-half after the election was called for Biden.

Mizelle’s opinion in Health Freedom Defense Fund v. Biden, the case striking down the masking requirement, is so poorly reasoned that it is difficult not to suspect that it was written in bad faith. Its primary argument is that federal law permits the Centers for Disease Control and Prevention to require businesses to clean up contaminants that can spread disease, but that the law does not permit the CDC to actually prevent such contamination from occurring in the first place. But, to arrive at this interpretation of the law, Mizelle takes extreme liberties with statutory text.

I do not believe that Judge Mizelle is as incompetent as her opinion suggests. When Mizelle was up for Senate confirmation, the American Bar Association determined that she “has a very keen intellect, a strong work ethic and an impressive resume,” despite the fact that she lacked enough experience to be traditionally qualified for the federal bench. By all accounts, Mizelle is a smart early-career attorney who could be a very effective advocate. Neither Justice Thomas nor Jones Day have a reputation for hiring rank incompetents, though the former, in particular, is known for hiring hardline conservatives.

The most likely reading of her opinion, in other words, is that she simply disagreed with the Biden administration’s masking policy, and concocted a justification for striking it down. That approach should trouble anyone who cares about democracy, regardless of what they think about mandatory masking on airplanes.

Mizelle’s opinion is an abomination against textual interpretation

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 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.

The word “sanitation” doesn’t mean what Mizelle says it means

Mizelle begins her analysis by arguing that this list of examples limits the CDC’s authority to make regulations — an assumption that, in fairness, is grounded in the Supreme Court’s interpretation of the statute. Thus, according to Mizelle, if the law authorizes the masking requirement, “the power to do so much be found in one of the actions enumerated” in the statute’s list of examples. The masking rule must be a regulation providing for “inspection, fumigation, disinfection, sanitation,” or something similar.

But that shouldn’t be a problem. The word “sanitation” appears right there in the statute, and the masking requirement is a classic sanitation regulation. Its whole purpose is to prevent passengers from spewing a dangerous contaminant into the air that can infect other passengers. And, as Mizelle admits in her opinion, dictionary definitions of the word “sanitation” include “measures that keep something clean.” She even quotes dictionaries that provide definitions such as “the use of sanitary measures to preserve health.”

Nevertheless, Mizelle refuses to give the word “sanitation” its ordinary meaning, instead claiming that this word’s meaning must be limited “to measures that clean something, not ones that keep something clean.”

Suppose, for example, that many toilets installed in airplanes had a design defect that causes them to spew sewage into the cabin. Under the ordinary definition of the word “sanitation,” the CDC could order airlines to fix these toilets to prevent passengers from being exposed to sewage in the first place. But, under Mizelle’s definition, the CDC would have to wait until passengers were wading through feces before it could order the airline to clean it up.

Mizelle reaches this creative interpretation of the statute by pointing out that the word “sanitation” appears in the same company as other words, such as “fumigation” or “disinfection” which involve the removal of existing contaminants and not preventative measures. “Words grouped in a list should be given related meaning,” she claims, quoting from a 1990 Supreme Court opinion.

But beyond semantic sophistry, Mizelle offers little explanation for why the common element uniting words like “fumigation” and “disinfection” is that they involve efforts to clean something up that is already dirty. Another element uniting these words with the word “sanitation” is that they all describe ways to prevent people from being exposed to a disease — such as by requiring people to wear masks so that they don’t readily spew Covid germs into the air.

Mizelle also briefly notes that the statute CDC relies upon to require masking has historically been used for more modest regulations, such as “quarantining infected individuals and prohibiting the import or sale of animals known to transmit disease.” But Covid-19 is the most serious public health crisis since the late 1910s, and arguably the most serious crisis of any kind to face the globe since World War II. So it’s unsurprising that the CDC used its authority more aggressively to confront a historical crisis than it did to fight more ordinary diseases.

And really, why on earth would Congress write a statute to permit the CDC to clean up a mess, but to forbid it from preventing that mess from occurring in the first place? As Mizelle’s opinion shows, a lawyer of sufficient ability can offer a legalistic justification for nearly any result that they want. But that’s not the role of a judge.

The rest of Mizelle’s opinion is even less persuasive than her interpretation of the word “sanitation”

In case there’s any doubt that Mizelle is not operating in good faith, the next segment of her opinion erases such 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 limits on the general authority over property and individuals that is granted in the first part of the statute. To illustrate, read the text of one of the three provisions Mizelle describes as giving the CDC authority over individuals:

Regulations prescribed under this section shall not provide for the apprehension, detention, or conditional release of individuals except for the purpose of preventing the introduction, transmission, or spread of such communicable diseases as may be specified from time to time in Executive orders of the President upon the recommendation of the Secretary, in consultation with the Surgeon General.

Unlike the primary provision of the statute, which gives the CDC the power to “make and enforce” regulations, this later provision contains no language authorizing the CDC to do anything. Instead, it places a limit on the CDC’s power to issue regulations under the primary provision. The primary provision gives the CDC the power to issue regulations limiting individual liberty, while the subsequent provision says that the CDC must satisfy certain conditions if it wants to apprehend, detain, or conditionally release an individual.

The other two provisions that Mizelle relies upon, which can be read here, similarly place limits on the CDC’s power to issue regulations. But they create no distinction between “property” and “individual’s liberty,” as Mizelle suggests.

In any event, there’s no need to get more into the weeds here. The point is that, while federal law does place some explicit limits on the CDC’s authority, there is no language whatsoever suggesting that the CDC’s sanitation regulations only apply to “property.” Mizelle appears to have just made this distinction up.

The elected branches, and not judges, should decide public policy

Although current polling data specifically on airplane mask mandates is hard to find, a Harris poll from early April found that 60 percent of people wanted the transportation mask mandate to be extended, and only 21 percent strongly opposed it.

Other polls, however, suggest that mask mandates more broadly are starting to fall out of favor. An Axios/Ipsos poll, which was released last week, found that “the number of Americans who support their state or local government requiring masks in all public places has also dipped below 50% for the first time — now, 44% support such a requirement, down from 50% last month and 67% at the beginning of the year (during the height of the Omicron variant).”

Republicans like Mizelle, however, have long supported rolling back masking rules. A February Ipsos poll found that nearly two-thirds (64 percent) of Republicans “support government entities lifting all restrictions, compared to just 23% of Democrats.”

In any event, regardless of whether Mizelle ruled the way she did because she wanted to substitute conservative policy preferences for the Biden administration’s, or because she believed that popular opinion was on her side, this is not how a democratic society is supposed to function.

In 2020, the American people elected Joe Biden president. That means that Democrats will have an outsized say in determining America’s public health policy for the duration of Biden’s tenure in office. If the voters decide that Biden handled this responsibility poorly, then they will have the opportunity to swap in a different president in 2024.

The appointment of Mizelle — and other, similarly ideological judges — by Trump was intended to short-circuit this democratic process. Trump gave dozens of Federalist Society stalwarts the power to block literally any federal policy. And, especially in the public health context, Trump’s judges are using this power quite aggressively.