District Judge Kathryn Kimball Mizelle
On April 13, 2022 Rochelle Walensky’s CDC announced that the agency’s masking requirement for public travel would be extended until May 3. The reason cited by CDC was an increase in cases and concerns for the latest variant, BA.2.
Yesterday, April 18, 2022, Judge Kathryn Kimball Mizelle, United States District Court for the Middle District of Florida concluded:
”The “essential purpose” of notice and comment is “to reintroduce public participation and fiimess to affected parties after governmental authority has been delegated to unrepresentative agencies.” Batterton v. Marshall, 648 F.2d 694,703 (D.C. Cir. 1980) (Bazelon, ].). The government's response obscures that. And its behavior denied it.”
and;
“Since the CDC issued the Mask Mandate “without observance of procedure required by law,” the Court must “hold [it] unlawful and set it] aside.”
And so Judge Mizelle did just that. She ordered the CDC to rescind its mask mandate for public travel. U.S. arlines and Uber quickly reacted. The airlines made mask wearing optional or ended the practice all together. Uber announced today that they were ending their masking requirements.
The White House Responds
White House Press Secretary Psaki performed her typical content free kabuki stating: “We’re continuing to recommend people wear masks.” In government parlance a “recommendation” is a suggestion and nothing more. Psaki also turfed the decision as to whether an appeal would be mounted to the Transportation Security Administration and the Department of Justice.
My view is that the mandate is dead. Finished. Over. There are legal reasons and political reasons. Sometimes, even in this administration the legal reasons overcome the political reasons.
IF the DOJ decides to mount an appeal it will have to overcome two things. First, they will have to prove that an emergency exists. It doesn’t. The data simply doesn’t support the notion that the nation is facing a COVID-19 emergency. Even in the face of a new variant, BA.2, the number of new cases remains well below 0.01% of the nation’s population. No one can reasonably call that an emergency situation. But even if the government were to prevail on that argument it would still have to overcome The Administrative Procedures Act.
In her ruling, Judge Mizelle concluded that reliance on Article 264 of the Public Health Service Act does not provide CDC with blanket authority to Act without considering process. In this case and in all regulatory actions, the government is required to follow the Administrative Procedures Act which requires the it to publish a proposed rule, have an open comment period, a hearing, and publication of a final rule.
My experience with OSHA rule making is that it is, in the best of circumstances, a two year process.
Politically, Biden’s approval is about to hit uncharted negative territory. Far below the dreams of even the most ardent Tump haters expectations during his tenure. Even this administration understands how unpopular this “mandate” was and the sheer folly of trying to prop it up should deter even the most tone deaf politicos.
The travel mandate is dead.
Well done Judge Mizelle. Well done.
Psalm 103:6 “The LORD works righteousness and justice for all the oppressed.”
Union, KY
19 April 2022