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."
I disagree. Although the court's reading of the statute isn't the only possible interpretation, it does not lack credibility. It clearly conflicts with your anonymous reader's desired outcome of requiring others to wear masks despite a substantial and growing body of evidence that such mandates are ineffective (see, e.g., the charts at Ian Miller's Rationalground.com) and the fact that public health authorities in the UK and other countries, which presumably are adhering to "the science," have abandoned mask mandates on public transportation despite the continued prevalence of the virus.
In August of 2020, the staff of the nonpartisan Congressional Research Service released a legal memorandum entitled "Could the President or Congress Issue a Nationwide Mask Mandate?" Focusing on the relevant text of the Public Health Service Act, the memorandum acknowledges the possibility of a broad construction of the "other measures" language but then goes on to observe: "Given this structure and language, regulations issued pursuant to this authority have primarily been confined to two general types of control measures: (1) quarantine and isolation measures of people and goods (administered by the CDC) and (2) measures that control or treat areas, animals, or articles that are susceptible or subject to contamination or infection (administered by the U.S. Food and Drug Administration (FDA)). This limited construction may be consistent with a canon of statutory interpretation that confines the meaning of a general term (e.g.,'other measures' deemed necessary by the agency) to matters comparable to the more specific terms enumerated in the statute. Further complicating the analysis is the evolving political dimension of the mask mandate debate. In assessing an agency’s statutory authority, the Supreme Court has cautioned that courts must 'be guided to a degree by common sense as to the manner in which Congress is likely to delegate a policy decision of [significant] economic and political magnitude to an administrative agency.' In light of these considerations, it is therefore difficult to predict whether courts would conclude that the CDC’s authority under section 361 would extend to the nationwide mandating of face masks."
As an aside, I don't find Professor Somin's soiling example nearly as persuasive as you seem to. I don't believe Congress, in enacting the Public Health Service Act, contemplated the CDC making the soiling of the aisles of an airplane or train a proverbial "federal offense". This seems to me to be one of the police powers that, pursuant to the Tenth Amendment, was reserved for state and local authorities. If not, perhaps the CDC should be focusing its attention on the sidewalks of San Francisco and Seattle.
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.
Apr 20, 2022·edited Apr 20, 2022Liked by David Lat
I don't think you need to be that worried. A CDC regulation against smoking on public transportation might be vulnerable, by this logic; but the CDC doesn't actually prohibit smoking on planes. The DOT does. See https://www.federalregister.gov/documents/2000/06/09/00-14480/smoking-aboard-aircraft (edit: and note the cites to several actual laws prohibiting smoking on aircraft, which the DOT is merely implementing, rather than creating from whole cloth)
If the Biden administration thinks this is important, they could look for another agency with the statutory authority to pass it--preferably going through the notice-and-comment process this time, if they actually want it to stick. Or they could, y'know, pass an actual law! (And if your response is "it'd never pass Congress," well, that's part of the reason this rule *shouldn't* be in place.) If they pursue neither of those avenues, then it's not Judge Mizelle who killed the regulation, it's the administration's political cowardice and reluctance to extend a broadly unpopular measure.
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.
On point #1, the sense I have is that the parties focused much more on "sanitation" when litigating the case—perhaps because "such other measures," if construed broadly, could include pretty much anything. So to cabin it to something reasonable, "such other measures" gets construed in light of all the other words in the statute—which takes you right back to "sanitation."
On point #2, I agree. I'm a big believer in science, but it doesn't have all the answers to questions that are legal or political in nature (which is why "following the science" only takes you so far).
On point #3, I agree with you that polling is irrelevant as a legal matter. But when it comes to political implications and strategy, which is what I was discussing in this post when I mentioned the polling, public opinion is a consideration.
Perhaps the lack of notice and comment, and the question of whether there was still an emergency, prompted the parties not to focus on the “such other measures” provision in the statute. But the provision is there, and the scientific evidence supporting masks, which presumably CDC put in the rulemaking record, was (and is) compelling. I haven’t read the Federal Register notice, but I can only hope that CDC included reliance on ”such other measures.” If so, then it’s not at all a stretch to say that measures such as masks are reasonably necessary to prevent infection. And using all the statutory language is quite permissible - indeed preferable to tortured parsing of “sanitation.”
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!
Apr 21, 2022·edited Apr 21, 2022Liked by David Lat
Pulling the rug out from almost a century of reliance (and case law) on federal agencies' ability (based on broad grants of authority from Congress) to react to the complex and fast moving realities of modern society based on changes in the ideological composition of the Supreme Court is not exactly a model of judicial restraint. When seen in concert with the complete paralysis of Congress it feels like active malfeasance.
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.
Fair point! This post was running long so I decided to skip Chevron, but it's worth noting.
As for why I skipped it, maybe I'm jaded, but I feel Chevron has become such a non-entity at this point. Nobody ever gets to step two; it's so easy to just declare the statute unambiguous. (I also think Chevron is not long for this world, but that's a topic for another day.)
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?
Check out the Ilya Somin post I link here, which I think is one of the most fair-minded assessments of the type you’re looking for. Many of the others are colored by whether the writer likes the outcome. In contrast, Ilya opposes mask mandates, but he has serious issues with the reasoning of the opinion.
Thank you, I will review the speedy supply later. (Working now, stole a minute to read the post and saw the one-side-other side-everything-is-equal political stuff I am pretty tired of.) It's definitely the reasoning critiques I'm wanting to see. Thanks, I should have read Somin before popping off.
It sounds like maybe you're looking with a very strong point of view, as opposed to something balanced (and Ilya Somin's piece, like my discussion here, is fairly balanced). If that's what you're looking for, check out this piece by my former colleague Joe Patrice, which is a more aggressive, point-by-point attack on the opinion:
You're right about strong point of view: I strongly expect federal judges to support their opinions with diligently studied facts, reliance on settled precedents before fully explaining a need to diverge, and concise, persuasive reasoning. These are objective standards not unique to me which can be applied to any judicial opinion. There is real substance to Joe Patrice's analysis, where he KILLS the good facts and logical reasoning aspects. I would enjoy reading more of this kind of deeply supported opinions. God only knows the heights to which Mr. Patrice could take us if he had also included an analysis of rex judicata relative to that flaccid piece of court production.
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.
The Judge Sutton piece from 4/16. Not the piece itself but the subject matter of universal injunctions. To me it does seem like over reach for one judge to essentially rule across all federal jurisdictions. When you get a chance I would very much like to connect with you on some personal news.
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."
I disagree. Although the court's reading of the statute isn't the only possible interpretation, it does not lack credibility. It clearly conflicts with your anonymous reader's desired outcome of requiring others to wear masks despite a substantial and growing body of evidence that such mandates are ineffective (see, e.g., the charts at Ian Miller's Rationalground.com) and the fact that public health authorities in the UK and other countries, which presumably are adhering to "the science," have abandoned mask mandates on public transportation despite the continued prevalence of the virus.
In August of 2020, the staff of the nonpartisan Congressional Research Service released a legal memorandum entitled "Could the President or Congress Issue a Nationwide Mask Mandate?" Focusing on the relevant text of the Public Health Service Act, the memorandum acknowledges the possibility of a broad construction of the "other measures" language but then goes on to observe: "Given this structure and language, regulations issued pursuant to this authority have primarily been confined to two general types of control measures: (1) quarantine and isolation measures of people and goods (administered by the CDC) and (2) measures that control or treat areas, animals, or articles that are susceptible or subject to contamination or infection (administered by the U.S. Food and Drug Administration (FDA)). This limited construction may be consistent with a canon of statutory interpretation that confines the meaning of a general term (e.g.,'other measures' deemed necessary by the agency) to matters comparable to the more specific terms enumerated in the statute. Further complicating the analysis is the evolving political dimension of the mask mandate debate. In assessing an agency’s statutory authority, the Supreme Court has cautioned that courts must 'be guided to a degree by common sense as to the manner in which Congress is likely to delegate a policy decision of [significant] economic and political magnitude to an administrative agency.' In light of these considerations, it is therefore difficult to predict whether courts would conclude that the CDC’s authority under section 361 would extend to the nationwide mandating of face masks."
As an aside, I don't find Professor Somin's soiling example nearly as persuasive as you seem to. I don't believe Congress, in enacting the Public Health Service Act, contemplated the CDC making the soiling of the aisles of an airplane or train a proverbial "federal offense". This seems to me to be one of the police powers that, pursuant to the Tenth Amendment, was reserved for state and local authorities. If not, perhaps the CDC should be focusing its attention on the sidewalks of San Francisco and Seattle.
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.
I don't think you need to be that worried. A CDC regulation against smoking on public transportation might be vulnerable, by this logic; but the CDC doesn't actually prohibit smoking on planes. The DOT does. See https://www.federalregister.gov/documents/2000/06/09/00-14480/smoking-aboard-aircraft (edit: and note the cites to several actual laws prohibiting smoking on aircraft, which the DOT is merely implementing, rather than creating from whole cloth)
If the Biden administration thinks this is important, they could look for another agency with the statutory authority to pass it--preferably going through the notice-and-comment process this time, if they actually want it to stick. Or they could, y'know, pass an actual law! (And if your response is "it'd never pass Congress," well, that's part of the reason this rule *shouldn't* be in place.) If they pursue neither of those avenues, then it's not Judge Mizelle who killed the regulation, it's the administration's political cowardice and reluctance to extend a broadly unpopular measure.
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.
On point #1, the sense I have is that the parties focused much more on "sanitation" when litigating the case—perhaps because "such other measures," if construed broadly, could include pretty much anything. So to cabin it to something reasonable, "such other measures" gets construed in light of all the other words in the statute—which takes you right back to "sanitation."
On point #2, I agree. I'm a big believer in science, but it doesn't have all the answers to questions that are legal or political in nature (which is why "following the science" only takes you so far).
On point #3, I agree with you that polling is irrelevant as a legal matter. But when it comes to political implications and strategy, which is what I was discussing in this post when I mentioned the polling, public opinion is a consideration.
Perhaps the lack of notice and comment, and the question of whether there was still an emergency, prompted the parties not to focus on the “such other measures” provision in the statute. But the provision is there, and the scientific evidence supporting masks, which presumably CDC put in the rulemaking record, was (and is) compelling. I haven’t read the Federal Register notice, but I can only hope that CDC included reliance on ”such other measures.” If so, then it’s not at all a stretch to say that measures such as masks are reasonably necessary to prevent infection. And using all the statutory language is quite permissible - indeed preferable to tortured parsing of “sanitation.”
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!
Pulling the rug out from almost a century of reliance (and case law) on federal agencies' ability (based on broad grants of authority from Congress) to react to the complex and fast moving realities of modern society based on changes in the ideological composition of the Supreme Court is not exactly a model of judicial restraint. When seen in concert with the complete paralysis of Congress it feels like active malfeasance.
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.
Fair point! This post was running long so I decided to skip Chevron, but it's worth noting.
As for why I skipped it, maybe I'm jaded, but I feel Chevron has become such a non-entity at this point. Nobody ever gets to step two; it's so easy to just declare the statute unambiguous. (I also think Chevron is not long for this world, but that's a topic for another day.)
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?
Check out the Ilya Somin post I link here, which I think is one of the most fair-minded assessments of the type you’re looking for. Many of the others are colored by whether the writer likes the outcome. In contrast, Ilya opposes mask mandates, but he has serious issues with the reasoning of the opinion.
Thank you, I will review the speedy supply later. (Working now, stole a minute to read the post and saw the one-side-other side-everything-is-equal political stuff I am pretty tired of.) It's definitely the reasoning critiques I'm wanting to see. Thanks, I should have read Somin before popping off.
It sounds like maybe you're looking with a very strong point of view, as opposed to something balanced (and Ilya Somin's piece, like my discussion here, is fairly balanced). If that's what you're looking for, check out this piece by my former colleague Joe Patrice, which is a more aggressive, point-by-point attack on the opinion:
https://abovethelaw.com/2022/04/mask-mandate-struck-down-because-sanitation-doesnt-mean-keeping-things-clean-for-reasons/
You're right about strong point of view: I strongly expect federal judges to support their opinions with diligently studied facts, reliance on settled precedents before fully explaining a need to diverge, and concise, persuasive reasoning. These are objective standards not unique to me which can be applied to any judicial opinion. There is real substance to Joe Patrice's analysis, where he KILLS the good facts and logical reasoning aspects. I would enjoy reading more of this kind of deeply supported opinions. God only knows the heights to which Mr. Patrice could take us if he had also included an analysis of rex judicata relative to that flaccid piece of court production.
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.
Thanks! But sorry, just wanted to clarify—which earlier article was cause for concern?
The Judge Sutton piece from 4/16. Not the piece itself but the subject matter of universal injunctions. To me it does seem like over reach for one judge to essentially rule across all federal jurisdictions. When you get a chance I would very much like to connect with you on some personal news.