A federal judge in Florida sparked controversy Monday, revoking the Biden administration’s mandate for public travel masks in a decision that critics ridiculed as overly formalistic and separate from the health imperatives of the global pandemic.
In a 59-page ruling, Tampa-based U.S. District Judge Catherine Kimball Miesel, appointed to Trump, ruled that the measure went beyond the powers of the Centers for Disease Control and Prevention (CDC).
The opinion drew criticism on various fronts, ranging from personal attacks on the 35-year-old judge’s youth and qualifications for the bench, to accusations of judicial exaggeration.
For some legal experts, however, the most controversial aspect of the decision was what they saw as Misel’s misguided approach to an interpretive method known as textualism, which unduly narrowed the scope of a landmark public health law.
“I think the decision is essentially quite troubling, especially the legal interpretation,” said Michael Dorf, a law professor at Cornell University.
In Monday’s ruling, Misel cited several reasons for revoking the CDC’s mandate. She accused the agency of bypassing the normal rule-making procedure. She also concluded that the CDC had not provided an adequate legal basis for its policy, which required masks for travel by plane, train and bus.
But the part of the decision that sparked particular anger was Misel’s interpretation of a 1944 federal law known as the Public Health Act (PHSA). Mizelle’s decision largely addressed the meaning of the word “sanitation”, which is not defined in the statutes.
To establish its meaning, Mizel turned to dictionary definitions and argued that among the two competing meanings of the word – to “keep something clean” or to “clean something” – that the latter was the correct definition.
“The context of the (PHSA provision) shows that ‘sanitation’ and ‘other measures’ refer to measures that clean something, not one that keeps something clean,” Misel writes. “Wearing a mask doesn’t clean anything. It captures most viral droplets. But it neither “disinfects” the person wearing the mask nor “disinfects” the vehicle. “
This main conclusion in Misel’s decision attracted a wide range of critics.
Among them was Cornell’s Dorf, who argued that the meaning of “sanitation” in the text was ambiguous. According to the long-standing doctrine of the Supreme Court, this ambiguity, in turn, should entitle the agency to great respect from the court.
“She looks at sanitation and says it has these two meanings. She then goes through a complex set of arguments as to why she thinks the first meaning is better. But then she says it’s unequivocal and therefore the agency has no right to respect, “he said. “But I have to say that I was not at all convinced that it removed the ambiguity.”
He also criticized her textual analysis as separate from Congress’ goal of handing over power to the CDC to protect public health.
“This is particularly wooden, given that (her decision) has to do with what these words mean in relation to these other words, as opposed to what these words mean in the context of Congress, which is trying to solve a problem here,” the problem is that sometimes deadly diseases are around, “he said. “Why the hell would they want to limit it to cleaning in that sense, instead of taking measures that are effective?”
“I have found that the worst and least convincing opinion is this part,” he said.
Daniel Walters, a law professor at Penn State University, called Misel’s approach “so separate from the text of the charter that it doesn’t deserve to be called textualism.”
“You can’t just put the statutes in a bag of words, consult a dictionary, choose your favorite definition, and call it textualism,” Walters said. “Yet the court did so, and he had the audacity to tell people that they were unusual if they did not agree with this simple interpretation.
The justice ministry said Tuesday night it plans to appeal the decision if the CDC deems that the mask mandate “remains necessary for public health”.
“The department continues to believe that the order requiring camouflage in the transport corridor is a valid exercise of the powers given by Congress to the CDC to protect public health,” the Justice Department said in a statement. “This is an important body, for the preservation of which the department will continue to work.
Prior to the DOJ’s announcement, several legal experts said it would be risky for the Biden administration to appeal because it could set a bad precedent in appellate courts, including the Supreme Court.
“Conservative lawyers feel encouraged to repel the actions of agencies that would have seemed rather inconspicuous in an earlier era,” said Lars Noah, a law professor at the University of Florida. “So, if the appellate courts are increasingly approving of textualism, then judicial judges should not be afraid of reversing the aggressive use of this method.”
“Appealing against them risks losing in ways that could have a more lasting detrimental effect,” he added.
Of course, not everyone agreed with the criticism of Misel’s decision, and some conservative lawmakers and experts were thrilled with the decision.
“Thanks to Judge Catherine Kimball Misel of Florida for TERMINATING the mandates for masks on planes and trains!” “LET FREEDOM GIVE!”
Senator Marco Rubio (R-Fla.) Welcomed the decision, saying it confirmed his previous approval of Misel’s position in the federal bench.
“Almost two years ago, I enthusiastically encouraged Judge Misel to be a district court judge,” Rubio wrote on Twitter. “She was sane today, which makes me especially proud to have done so.
Other supporters of Misel’s decision included Catherine Drabiak, a public health expert and professor at the University of South Florida. Drabiak said the decision is in line with the history of public health policy, which has taken a more individualized approach to regulation and seeks to link measures to a specific focus, person or location, rather than regulating an entire industry.
“I agree with what the court says that the Public Health Act does not entitle the CDC to adopt this type of measure,” she said. “Based on what the law is, based on historical precedent, I believe that the CDC has exceeded its powers and has not complied with various laws.
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But some critics of Monday’s ruling say Misel should be blamed for the overdoing. The decision – which imposed a nationwide ban on the mask’s mandate – comes amid a heated debate in legal circles over when such broad decisions are appropriate.
Walters of Penn State University said he was generally skeptical of national bans, but suggested they might be appropriate in certain situations.
“It doesn’t seem to be one of those situations,” Walters said. “Here you have a single non-representative judge who sets the policy for the whole nation. It is now not possible for those who are adversely affected by this ban to have their day in court. Just when there are ongoing disagreements, the courts must be especially careful in ending the debate, intervening to “settle” matters. “
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