For over a year, the Centers for Disease Control and Prevention (CDC) has threatened criminal and civil penalties and mandatory removal for not wearing a mask in airports, train stations, and other transportation hubs, as well as on airplanes, buses, trains, Uber rides, and most other public conveyances. According to federal Judge Kathryn Kimball Mizelle, the CDC’s actions were all illegal and beyond the power Congress gave them. She has invalidated the mandate, a decision that allows anyone to wear masks or not regardless of what the CDC thinks.
The CDC claimed this authority for the first time in its 70-year existence under the Public Health Services Act of 1944 section 264(a). It had previously invoked this provision to claim the power to shut down the cruise ship industry and stop landlords from evicting tenants who have not paid rent—both of which have already been invalidated by courts as not being within the powers Congress gave to the CDC.
The statute gives examples of the powers authorized as “inspection, fumigation, disinfection, sanitation, pest extermination, and destruction of contaminated animals and articles.” The government agreed the mask mandate was not inspection, fumigation, disinfection, pest extermination, or destruction of articles, meaning the only power left that the government claimed for the CDC was one of “sanitation” or some “other measure” similar to sanitation.
There are two definitions of “sanitation” that the court considered, one that supported the plaintiffs—measures that clean something or that remove filth, such as trash collection, washing with soap, incineration, or plumbing—and one that supported the government—measures that keep something clean, which could include air filters, masks, or other protective equipment.
The other words used, “inspection, fumigation, disinfection, pest extermination, or destruction,” suggest a direct targeting of and destroying the disease. Sanitation used to mean cleaning something would also fit within this theme of the statute. If sanitation meant to keep something clean, then fumigation or disinfection would already be implied by sanitation and unnecessary to use (we presume Congress meant every word to have meaning). There is another critical problem with the CDC’s claims. Section 264(a) dealt with the power over property; Sections (b) through (d) dealt with individuals.
There is another problem for the government. Even if Congress wanted to give the CDC power for “applying of measures for preserving and promoting public health,” such a broad and vague power cannot be explicitly delegated by Congress under the nondelegation doctrine or implicitly under the major questions doctrine. There are no limits to what such a power could be used to accomplish. Only Congress can claim such broad power over interstate transportation.
There are other problems Judge Mizelle found with the failure of CDC to take public comment, but such process concerns, although important, don’t limit what the agency could do it if followed the right process.
Judge Mizelle carefully examined the CDC’s unfounded claims of authority and properly rejected congressional authorization for a mask mandate. The CDC cannot use a provision for cleaning properly to require people to wear masks. We should all thank Judge Mizelle for properly returning the power to airlines and passengers to decide if masks should be worn.