Posting on behalf of a highly critical reader (please note that this is not my comment—from time to time, readers who don't wish to post in the comments under their own names will email me and ask me to post on their behalf, and that is what I'm doing here):
"Among the myriad of logical problems with Judge Mizelle’s appallingly poorly-crafted decision is Her Honor’s failure to meaningfully grapple with 'and other measures' in Section 264(a). Her Honor wrote as if 'and other measures' were a gloss on sanitation, but that is not a credible reading. 'And other measures' clearly was meant to provide the widest possible authority for the CDC (with the approval of the Sec. of HHS) to take such 'other measures' as the CDC believed 'in his judgement may be 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.'
The Notice and Comment Section of the opinion is judicial lawmaking, run amok.
The Arbitrary and Capricious Section of the opinion would give any federal court the authority to strike down virtually any regulation.
This is a dumb decision, poorly crafted, by a judge who was widely derided as an incompetent hack before she was confirmed. I do not know if she is an incompetent hack, but there is nothing in this opinion that would move me away from such an opinion."
Excellent summary. I won't comment on the substance of the decision, but rather on one of the "liberal" talking points you cite, namely this from Mark Joseph Stern:
"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."
Well, coming from another liberal democracy, Canada, my reply is this:
(1) It is not uncommon at all for judges to set aside executive decisions based on statutory authority, if they are improperly framed or made for reasons that either exceed the authority cited, or where discretion was improperly fettered or exercised.
(2) WAIT. What? Did you say "unelected judge"? No other liberal democracy that I am aware of "elects" judges. Select, yes. Elect, no. Because you know what? Election is actually *more* prone to result in non-impartial, partisan, please-the-crowd judgments.
Now I can see how in the US, directly electing judges may be a smidgeon less awful than those hideously partisan confirmation processes that lead to the categorization of "our" or "their" judges. But electing judges sure as heck is not a panacea, nor will it lead to better or more non-political decisions. Or am I missing something?
Apr 20, 2022·edited Apr 20, 2022Liked by David Lat
Great summary. Full disclosure: I think that her opinion (which I did read) was by and large a strained word salad meant to justify her political leanings. THAT SAID, I am more concerned about what the "next step" from this ruling will be. Will we see smokers go to court to get smoking allowed on flights (or trains, or buses) once again? I think that the logic of her opinion could be employed by them to get those regulations overturned. If that does happen, I'm not setting foot in any plane, train, bus, etc., that allows smoking. Am I catastrophizing? Probably, but if there's anything the last five plus years have taught me, it is that from a political and public health standpoint, things can always get worse.
1. The PHSA allows CDC to take “such other measures” as may be reasonably necessary to control infection. Why the Court ignored this language is beyond me, for it would seem to support the mask mandate.
2. It is distressing to see so many complaining about a judge’s construing the law in a way that scientists don’t like. That is what judges do. I think this judge was wrong, but hardly acting beyond her authority to interpret the law. (I have no opinion on the nationwide injunction issue, except to note that Republicans have been almost universally opposed to nationwide injunctions until this week.)
3. It is distressing to see so many commentators noting that many people, perhaps a majority, favor continuation of the mask mandate, as if that should matter. As noted, I think Judge Mizelle erred, but not because she failed to take account of public opinion.
The decision is correct as to lack of Notice and Comment, and that is dispositive, and easy. It is not the amount of evidence cited, but that there was ZERO DISCUSSION. The way the APA works, for every regulation, is that the agency is supposed to listen to comment and at least pretend to engage with it. The CDC didn't do that. Case closed.
Well, there are emergency exceptions. But an emergency rule should be followed by later notice and comment, and should be scrutinized far more carefully by the courts, with no Chevron deference.
I don't love the reasoning for this decision, which turns on some subtle linguistic points. In particular, whenever your reasoning rests in large part on avoiding surplusage, you're on shaky ground; sometimes people just write in a redundant way, and lawmakers are no exception.
With that said, my sympathy for the pearl-clutching over this in the legal community is profoundly limited. This is the kind of thing that predictably happens when you try to legislate through agencies. If your strategy for passing regulations depends on a certain interpretation of statutory authority, your regulations become vulnerable. Pass real laws, or suffer these consequences!
I think a discussion of the opinion's refusal to grant Chevron deference is warranted as the judge, despite acknowledging two potential meanings of the word "sanitation," refused to concede that those two potential meanings created enough ambiguity to trigger Chevron. Your summary doesn't even mention Chevron, despite that being a major part of the opinion.
It’s fun to get into the politics of “nonpolitical” judicial rulings which are, so obviously, political. But I would like to see more analysis of the legal/factual groundings of the opinion. How were statutes and regulations excerpted and cited for support? Would the opinion meet a respected law review standard, regardless of result? If, as some commentators opine, this article gives a “good summary”, what makes it “good”? Does anyone read lengthy opinions any more?
Dayum David. Well done. And your earlier article was cause for concern for me as well. While I do not agree with how this went down the emphasis by some media commentators on the relatively young age of the judge seems like a sort of cheap shot. I believe Justice Thurgood Marshall was only in his early to mid forties when he argued Brown v. Bd. of Education. Sarah Waddington was 26 when she argued Roe v. Wade and while I was at Jenner an associate argued a Scotus case. Very different but the point being young lawyers are quite capable of making excellent arguments and contributing to the profession.
Posting on behalf of a highly critical reader (please note that this is not my comment—from time to time, readers who don't wish to post in the comments under their own names will email me and ask me to post on their behalf, and that is what I'm doing here):
"Among the myriad of logical problems with Judge Mizelle’s appallingly poorly-crafted decision is Her Honor’s failure to meaningfully grapple with 'and other measures' in Section 264(a). Her Honor wrote as if 'and other measures' were a gloss on sanitation, but that is not a credible reading. 'And other measures' clearly was meant to provide the widest possible authority for the CDC (with the approval of the Sec. of HHS) to take such 'other measures' as the CDC believed 'in his judgement may be 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.'
The Notice and Comment Section of the opinion is judicial lawmaking, run amok.
The Arbitrary and Capricious Section of the opinion would give any federal court the authority to strike down virtually any regulation.
This is a dumb decision, poorly crafted, by a judge who was widely derided as an incompetent hack before she was confirmed. I do not know if she is an incompetent hack, but there is nothing in this opinion that would move me away from such an opinion."
Excellent summary. I won't comment on the substance of the decision, but rather on one of the "liberal" talking points you cite, namely this from Mark Joseph Stern:
"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."
Well, coming from another liberal democracy, Canada, my reply is this:
(1) It is not uncommon at all for judges to set aside executive decisions based on statutory authority, if they are improperly framed or made for reasons that either exceed the authority cited, or where discretion was improperly fettered or exercised.
(2) WAIT. What? Did you say "unelected judge"? No other liberal democracy that I am aware of "elects" judges. Select, yes. Elect, no. Because you know what? Election is actually *more* prone to result in non-impartial, partisan, please-the-crowd judgments.
Now I can see how in the US, directly electing judges may be a smidgeon less awful than those hideously partisan confirmation processes that lead to the categorization of "our" or "their" judges. But electing judges sure as heck is not a panacea, nor will it lead to better or more non-political decisions. Or am I missing something?
Great summary. Full disclosure: I think that her opinion (which I did read) was by and large a strained word salad meant to justify her political leanings. THAT SAID, I am more concerned about what the "next step" from this ruling will be. Will we see smokers go to court to get smoking allowed on flights (or trains, or buses) once again? I think that the logic of her opinion could be employed by them to get those regulations overturned. If that does happen, I'm not setting foot in any plane, train, bus, etc., that allows smoking. Am I catastrophizing? Probably, but if there's anything the last five plus years have taught me, it is that from a political and public health standpoint, things can always get worse.
Several thoughts.
1. The PHSA allows CDC to take “such other measures” as may be reasonably necessary to control infection. Why the Court ignored this language is beyond me, for it would seem to support the mask mandate.
2. It is distressing to see so many complaining about a judge’s construing the law in a way that scientists don’t like. That is what judges do. I think this judge was wrong, but hardly acting beyond her authority to interpret the law. (I have no opinion on the nationwide injunction issue, except to note that Republicans have been almost universally opposed to nationwide injunctions until this week.)
3. It is distressing to see so many commentators noting that many people, perhaps a majority, favor continuation of the mask mandate, as if that should matter. As noted, I think Judge Mizelle erred, but not because she failed to take account of public opinion.
The decision is correct as to lack of Notice and Comment, and that is dispositive, and easy. It is not the amount of evidence cited, but that there was ZERO DISCUSSION. The way the APA works, for every regulation, is that the agency is supposed to listen to comment and at least pretend to engage with it. The CDC didn't do that. Case closed.
Well, there are emergency exceptions. But an emergency rule should be followed by later notice and comment, and should be scrutinized far more carefully by the courts, with no Chevron deference.
I don't love the reasoning for this decision, which turns on some subtle linguistic points. In particular, whenever your reasoning rests in large part on avoiding surplusage, you're on shaky ground; sometimes people just write in a redundant way, and lawmakers are no exception.
With that said, my sympathy for the pearl-clutching over this in the legal community is profoundly limited. This is the kind of thing that predictably happens when you try to legislate through agencies. If your strategy for passing regulations depends on a certain interpretation of statutory authority, your regulations become vulnerable. Pass real laws, or suffer these consequences!
I think a discussion of the opinion's refusal to grant Chevron deference is warranted as the judge, despite acknowledging two potential meanings of the word "sanitation," refused to concede that those two potential meanings created enough ambiguity to trigger Chevron. Your summary doesn't even mention Chevron, despite that being a major part of the opinion.
It’s fun to get into the politics of “nonpolitical” judicial rulings which are, so obviously, political. But I would like to see more analysis of the legal/factual groundings of the opinion. How were statutes and regulations excerpted and cited for support? Would the opinion meet a respected law review standard, regardless of result? If, as some commentators opine, this article gives a “good summary”, what makes it “good”? Does anyone read lengthy opinions any more?
This was a great summary.
Dayum David. Well done. And your earlier article was cause for concern for me as well. While I do not agree with how this went down the emphasis by some media commentators on the relatively young age of the judge seems like a sort of cheap shot. I believe Justice Thurgood Marshall was only in his early to mid forties when he argued Brown v. Bd. of Education. Sarah Waddington was 26 when she argued Roe v. Wade and while I was at Jenner an associate argued a Scotus case. Very different but the point being young lawyers are quite capable of making excellent arguments and contributing to the profession.