Musings On Mizelle's Mask-Mandate Magnum Opus

Here's what you need to know about Monday's momentous ruling.

Judge Kathryn Kimball Mizelle (official U.S. government portrait).

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On Monday, Judge Kathryn Kimball Mizelle (M.D. Fla.) ruled that the federal mask mandate—which required mask wearing on airplanes, trains, buses, and other public transportation—was unlawful. She therefore “vacate[d] the Mandate and remand[ed] it” to the Centers for Disease Control and Prevention (“CDC”), from whence it came.

In colloquial terms, she “struck down” the Mandate, which is how the New York Times, NPR, and most other outlets reported the news. But as discussed below, things are a bit more complicated than that simple phrase suggests.

Here are answers to some frequently asked questions about Judge Mizelle’s opinion in Health Freedom Defense Fund, Inc. v. Biden.

So, what the heck happened here?

In the first days of his administration, President Joe Biden called upon CDC to impose a mask mandate for public transportation (“Mask Mandate” or “Mandate”). The agency issued the Mandate in February 2021 and extended it several times, most recently through May 3.

In July 2021, the Health Freedom Defense Fund, an Idaho-based nonprofit, sued to challenge the legality of the Mandate, which the federal government defended. Both sides filed motions for summary judgment. In a 59-page decision issued on Monday, Judge Mizelle ruled in favor of the Fund and declared the Mandate unlawful. [UPDATE (4/23/2022): Corrected to note that the Fund is based in Idaho, not Wyoming.]

I’m a liberal or progressive. What are my talking points?

Eric Lutz’s Vanity Fair post: “A number of people were particularly bewildered as to how a 35-year-old Donald Trump appointee rated ‘Not Qualified”’ by the American Bar Association (ABA) was able to effectively decide public health policy for much of the nation.”

Mark Joseph Stern’s Twitter thread: “Try explaining to your friends in other liberal democracies that a single unelected, life-tenured, 35-year-old judge just abolished the air travel mask mandate for the entire country. No peer nation would tolerate such a power-drunk juristocracy.”

Ruth Marcus’s Washington Post column: “Another day, another activist Trump judge legislating from the bench.”

Professor Eric Segall’s TikTok video: “A terrible decision by a terrible judge appointed by a terrible president.”

I’m a conservative or libertarian. What are my talking points?

John Hinderaker’s Powerline post: “Judge Mizelle’s reasoning is sound, particularly with regard to the CDC acting without statutory authorization…. Liberals are predictably up in arms about today’s decision, [but] I haven’t seen any adverse comment from anyone who appears to have read Mizelle’s opinion.”

Henry Olsen’s Washington Post column: “The decision was sound not only as a matter of law, but also a matter of public policy…. Mizelle’s ruling carefully parses the law and finds that national masking mandates to prevent the spread of disease are not measures to enhance sanitation.”

The Wall Street Journal editorial board: “It’s a strong opinion based in a careful reading of the Public Health Service Act of 1944, which was the basis for the CDC’s order…. National injunctions should be rare, but it would be hard to narrow, by geography or type of transport, a nationwide mask requirement for all public transportation.”

What was Judge Mizelle’s reasoning for holding the Mask Mandate unlawful?

First, she held that the Mandate exceeds the statutory authority of CDC under the Public Health Services Act of 1944 (“PHSA”), 42 U.S.C. § 246(a), which gives CDC the power to issue regulations to prevent the spread of communicable diseases. The agency can fight disease by “provid[ing] for such 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, and other measures, as in [its] judgment may be necessary.”

The government argued that mask wearing could be justified under the act as a “sanitation” measure. After conducting a detailed statutory and linguistic analysis drawing on multiple dictionaries and corpus linguistics, Judge Mizelle concluded that “sanitation” is really about “active measures to cleanse something”—and the Mandate therefore falls outside it:

Wearing a mask cleans nothing. At most, it traps virus droplets. But it neither ‘sanitizes’ the person wearing the mask nor ‘sanitizes’ the conveyance. Because the CDC required mask wearing as a measure to keep something clean—explaining that it limits the spread of COVID-19 through prevention, but never contending that it actively destroys or removes it—the mask mandate falls outside of [the PHSA’s] Section 264(a).

Second, Judge Mizelle held that the Mandate violated the Administrative Procedure Act (“APA”) by skipping over “notice and comment,” the process in which an agency lets the public know about a proposed rule and gives the public at least 30 days to comment on it. Notice and comment can be skipped for “good cause,” but this exception is narrowly construed, and the agency bears the burden of proving it applies. Judge Mizelle ruled that CDC’s explanation here—a “single conclusory sentence” referencing “the public health emergency caused by Covid-19”—was insufficient.

Third, she ruled that the Mandate was “arbitrary and capricious,” also a violation of the APA. In her view, CDC failed to provide adequate explanations for the Mandate—specifically, for why the agency rejected certain alternatives to the Mandate, such as testing and temperature checks, and why it provided for certain exceptions to the Mandate, such as being able to take off your mask while eating or drinking.

And what was the remedy for the Mask Mandate’s unlawfulness?

In legal terms, according to Judge Mizelle, the appropriate remedy was “vacatur”—or, in the parlance of the APA, “setting aside” the Mandate. The APA provides that courts reviewing agency action shall “hold unlawful and set aside” any agency action that exceeds statutory authority, is arbitrary and capricious, or otherwise violates the law—all things that Judge Mizelle concluded about the Mandate.

In practical terms, this is huge. It caused the federal government to no longer enforce the Mask Mandate in modes of transportation under federal jurisdiction, such as airplanes, which are overseen by the Transportation Security Administration (“TSA”), and trains run by Amtrak. Some airlines ditched the Mandate immediately, allowing passengers to remove and discard their masks mid-flight—filling some passengers with elation, and others with dread. (Certain local jurisdictions still have their own mask mandates—which is why in New York City you still need to wear a mask on the subway, on a bus, or in an Uber, Lyft, or taxi.)

Hold on a sec. Are you telling me that a single federal judge—in Flori-duh, of all places—can set policy for the entire country and millions of Americans?

Yes. Judge Mizelle’s order could be considered a so-called “nationwide” or “universal” injunction—which I presciently flagged as an important and emerging issue in the most recent edition of Judicial Notice.

As I discussed last week, several prominent judges, including justices of the Supreme Court, have questioned the propriety or wisdom of allowing one judge to block the federal government from enforcing a law or regulation anywhere, against anyone. In fact, Judge Mizelle wrote in her opinion that “the Court recognizes the criticism about nationwide injunctive relief and admittedly shares some of the skepticism about it”—perhaps not surprising given that Justice Clarence Thomas, for whom she clerked, is a leading critic of universal injunctions.

But there’s Eleventh Circuit precedent holding that a judge in Judge Mizelle’s position is supposed to “set aside” or “vacate” unlawful agency action. And “vacatur,” as a practical matter, is equivalent to an injunction preventing the agency from enforcing its rule across the country.

What’s wrong with these nationwide or universal injunctions?

Here’s what Chief Judge Jeffrey Sutton of the Sixth Circuit wrote in his concurrence in Arizona v. Biden, the opinion I highlighted in Judicial Notice (most citations omitted):

[Remedies] emerge from a federal court’s equitable power. A valid Article III remedy “operate[s] with respect to specific parties,” not with respect to a law “in the abstract.” That is why courts generally grant relief in a party-specific and injury-focused manner. In this same way, we do not remove—“erase”—from legislative codes unconstitutional provisions. Jonathan Mitchell, The Writ–of–Erasure Fallacy, 104 Va. L. Rev. 933, 1016–17 (2018). We merely refuse to enforce them in a case, thereby exercising “the negative power to disregard an unconstitutional enactment.”

Note the citation to Jonathan Mitchell’s Virginia Law Review article, which is turning out to be the rare law review article with real-world impact. The gist of Mitchell’s article is that judicial review doesn’t give the courts the power to “strike down” unconstitutional enactments, if “striking down” means cutting them out of the books like you’d cut your ex out of photos. Instead, judicial review merely “allows a court to decline to enforce a statute, and to enjoin the executive from enforcing that statute.”¹

Now let’s return to the Mask Mandate case. I wrote earlier that Judge Mizelle’s order “could be considered” a nationwide or universal injunction. In using this language, I’m echoing the analysis of Professor Samuel Bray in his excellent Volokh Conspiracy post, The Mask-Mandate Remedy. Technically speaking, Judge Mizelle, like many other judges, drew a distinction between “vacatur” and “injunction.” This is why the grant of relief at the end of her opinion “DECLARES UNLAWFUL and VACATES the Mask Mandate,” instead of ordering the federal government not to enforce it.

The APA provides that a reviewing court, like Judge Mizelle reviewing the Mask Mandate, may “hold unlawful and set aside" an agency rule that violates the law. As noted by Professor Bray, here Judge Mizelle followed Eleventh Circuit precedent “in favor of vacatur of a rule as to all people, and not just the parties”—which is tantamount to, you guessed it, a nationwide or universal injunction.

It’s understandable that Judge Mizelle followed Eleventh Circuit precedent; it’s her job. But is that precedent, and similar law in other circuits, actually correct? Chief Judge Sutton, Professor Bray, and other legal scholars have their doubts.

This is a super-interesting legal issue over which one could “nerd out” endlessly. If you’re interested in going down this rabbit hole, check out Chief Judge Sutton’s Arizona v. Biden concurrence, Professor Bray’s Volokh Conspiracy post, the law review articles cited therein, and the Rosenkranz Debate from the 2019 Federalist Society National Lawyers Convention, featuring Professor John Harrison of UVA Law debating Neal Katyal of Hogan Lovells about universal injunctions.

In that debate, Harrison’s critique of universal injunctions came across as the “conservative” position and Katyal’s defense of them sounded like the “liberal” one—because, back in 2019, the typical universal injunction was from a liberal judge blocking a Trump Administration policy. But as Judge Mizelle’s ruling in the Mask Mandate case demonstrates, universal injunctions can be used to stop liberal as well as conservative agency actions—which has led some commentators who previously defended universal injunctions in the Trump era to suddenly become harsh critics.

So what happens next?

Yesterday the Biden Administration announced that it might appeal Judge Mizelle’s decision—but only “[i]f CDC concludes that a mandatory order remains necessary for the public’s health after [further] assessment.” It might seem odd for the administration to stake out such an equivocal position; why wouldn’t it file an immediate appeal, including a request for an emergency stay? But the response actually makes sense, when you think about the rather tricky legal and political position the administration finds itself in.

Legally, an appeal could make a bad situation even worse. As Professor Lawrence Gostin of Georgetown Law told the New York Times, if the government doesn’t appeal, “then CDC is going to be gun-shy about doing things that it deems effective for the protection of the American public.” But if CDC does appeal, it “risk[s] forever taking away CDC’s powers if this goes up to the Eleventh Circuit and ultimately the Supreme Court,” then ends in defeat—which might very well happen, considering the political valence of the mask-mandate issue and how conservatives are a majority on both the Eleventh Circuit and SCOTUS.

To be sure, Judge Mizelle’s decision is far from bulletproof. Professor Ilya Somin, a libertarian who opposes mask mandates as a policy matter, identifies possible flaws in her reasoning over at the Volokh Conspiracy (see especially his “pooping on the floor” point). And other law professors have criticized the ruling as well.

Politically, however, it might make sense not to appeal. As noted by Eugene Daniels of Politico, Judge Mizelle’s ruling “takes a tough issue off the White House’s plate.” If the Biden Administration appeals, it “would risk political blowback on a hot political topic heading into the summer travel season”—and “it would give voters a clear target of who to blame for mask mandates.” (Yes, polling by the Associated Press found that 56 percent of Americans supported a mask mandate for travelers, as of last week—but if Covid-19 hospitalizations and deaths continue to decline, support for mask mandates will decline as well.)

At the end of the day, here’s what I still find striking: a single federal trial judge issued a ruling, and the entire U.S. government and numerous billion-dollar companies complied, more or less immediately. Whether or not Judge Mizelle’s decision on the Mask Mandate stands or falls on appeal, and whether or not you agree or disagree with her ruling, it underscores the power of the federal judiciary. For better or worse.

UPDATE (9:39 p.m.): Earlier this evening, the Biden Administration announced that it will appeal Judge Mizelle’s decision, in light of CDC’s “continuing assessment that at this time an order requiring masking in the indoor transportation corridor remains necessary for the public health.”

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1. This reasoning is what led Mitchell to come up with SB 8, the Texas anti-abortion law that’s enforced not by executive-branch officials but by private citizens seeking $10,000 rewards. Why couldn’t abortion providers mount a successful pre-enforcement challenge to SB 8 that could stop the law before it took effect? Because there was nobody to enjoin, since a court (1) couldn’t “strike down” SB 8 in the abstract, by “erasing” it from the books; (2) couldn’t enjoin anyone in the executive branch from enforcing SB 8, since executive officials don’t enforce the law; and (3) had no way of knowing which private citizens might come out of the woodwork to sue over an abortion under SB 8.