Column: Catching Air
A Federal District Court in the case of Health Freedom Defense Fund v. Joe Biden has held that the Centers for Disease Control (CDC) illegally forced passengers to wear face masks on airplanes and other public transportation since early last year. To be clear, this was not a decision that masks do not work or that they are no longer worthwhile, whether or not those things may be true. Rather, the Court determined that the CDC acted outside the scope of its legal authority, violating our rights as citizens for more than a year.
Congress could have mandated masks on airplanes if it wanted to, but Congress, representing us as their constituents, did not have the votes. So instead, the mask mandate was put in place by the Biden administration using the CDC as a federal agency “workaround” to force its will on the American people.
We’ve seen this before with the OSHA workers’ vaccine mandate that was recently held to be illegal by the Supreme Court.
While the airplane mask mandate is gone for now, the government has filed an appeal so there may be another fight up ahead. In the meantime, people can still choose to wear masks if they believe they offer protection, but most are choosing to go maskless.
The judge’s ruling focused on two main issues:
1. The mask mandate exceeded the CDC’s legal authority.
As a federal agency created by Congress, the CDC’s powers are limited to the scope of authority given to it by Congress. The government in this case argued that the mask mandate was allowable under a federal law authorizing the CDC to impose “sanitation” measures to prevent the spread of communicable diseases. The Court, however, did not believe the word “sanitation” was broad enough to impose near-universal mask requirements restricting healthy citizens’ freedom of movement.
The Court refused to defer to the CDC’s interpretation of its own authority and referenced a legal doctrine known as the “major questions doctrine” requiring an agency to have clear statutory authority from Congress before it can decide matters of “vast economic and political significance.” The Court noted that the CDC’s powers would be truly breathtaking if Congress had really given it the scope of authority it claimed. Where would that end? Could the CDC order nation-wide vaccinations against Covid, mandatory flu shots, mandatory coughing-into-elbows or daily multivitamins?
2. The CDC ignored rule-making procedures.
Even if a mask mandate was within the scope of the CDC’s authority, the CDC still did not comply with the required rule-making procedures, including the legal requirement to publish an advance “Notice of Proposed Rulemaking” to allow public review and comment upon any new rule before it can be legally binding.
These rulemaking procedures are an important legal safeguard to allow members of the public, industry groups, and other interested parties to participate in the rulemaking process by submitting written data, views or arguments. The agency is required to consider and respond to those comments during a 30-day period before any new rule can go into effect.
The CDC argued that it did not have time to follow the Notice and Comment procedures in this case since Covid was an “emergency.” But under the law, even in case of emergency, the CDC still had an obligation at the time to justify the emergency shortcut, which it did not attempt to do until after the fact when it was defending itself in Court.
The Covid pandemic had already been ongoing for almost a year and Covid case numbers were decreasing by the time the CDC got around to issuing its mask mandate.
The Court also felt that the CDC’s argument for an emergency exception was disingenuous since the CDC had plenty of time to go through the Notice and Comment process. The Covid pandemic had already been ongoing for almost a year and Covid case numbers were decreasing by the time the CDC got around to issuing its mask mandate.
These Notice and Comment requirements are not to be taken lightly. It is a critical process designed to allow public participation, thoroughness and fairness when rules are being created by an administrative agency comprised of unelected and mostly unaccountable bureaucrats who are far removed from ordinary citizens and our representatives in Congress.
Dr. Anthony Fauci and some others have criticized the Court’s ruling by suggesting that the so-called “experts” at the CDC, rather than judges, should be making public health decisions. But that shows a fundamental misunderstanding of our system of limited government.
While judges are not health professionals and they may or may not agree with the CDC on health issues, it is clearly within a judge’s purview to determine the scope of the CDC’s delegated authority as a federal government agency.
Laws and citizens’ rights matter, even in an emergency.
David G. Bjornstrom is a member of the U.S. Supreme Court bar and retired California attorney at law with 38 years specializing in business, estate and... MORE »