{"id":11717,"date":"2022-05-07T06:13:28","date_gmt":"2022-05-07T16:13:28","guid":{"rendered":"http:\/\/thefilipinochronicle.com\/backup\/?p=11717"},"modified":"2022-05-09T16:53:50","modified_gmt":"2022-05-10T02:53:50","slug":"biden-admin-mask-mandate-held-void","status":"publish","type":"post","link":"http:\/\/thefilipinochronicle.com\/backup\/2022\/05\/07\/biden-admin-mask-mandate-held-void\/","title":{"rendered":"Biden Admin Mask Mandate Held Void"},"content":{"rendered":"\n
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by Atty. Emmanuel S. Tipon

<\/em>When it comes to writers attacking judges whose decisions they do not like, here\u2019s what I have to say.

If the law is against you, pound on the facts. If the facts are against you, pound on the law. If the facts and the law are against you, pound on the judge.

<\/em>On April 18, Judge Kathryn Kimball Mizelle, a US district judge in Florida, declared unlawful and vacated the \u201cmask mandate\u201d issued by the Center for Disease Control (CDC) of the Biden administration.

The regulation required wearing of a mask in airports, train stations, and other transportation hubs as well as on airplanes, buses, and most public conveyances in the United States.

The court reasoned that it exceeded the CDC\u2019s authority and violated the procedures required for agency rulemaking under the Administrative Procedure Act.  Health Freedom Defense Fund, Inc., et al. v. Biden, Case No. 8:21-cv-01693 KKM AEP<\/em>. U.S. Dist. Ct., Middle Dist. of Florida, Tampa.

<\/em>The penalty for violating the mask mandate is $500-$1000 for the first offenders and $1000-$3000 for second offenders according to the Department of Homeland Security\u2019s Transportation Security Administration.<\/p>\n\n\n\n

The Mask Mandate was set to expire April 18, but CDC extended it to May 3 to allow more time to study the BA.2 omicron subvariant. The judge\u2019s decision effectively put that extension on hold.

<\/em>Most people rejoiced at the decision, shouting \u201cFree at last.\u201d TSA announced that it would no longer enforce the mask requirement.

Biden reportedly commented when asked what travelers should do: \u201cThat\u2019s up to them.\u201d White House Press Secretary said that \u201cPeople are not legally bound to wear masks.\u201d

But the Biden administration\u2019s Justice Department reportedly filed an appeal. Pro-Biden writers attacked the judge, saying among others that she was appointed by President Trump, was 33 years old and the youngest nominee of Trump. Other remarks border on defamation and I will not repeat them. <\/em><\/p>\n\n\n\n

Background
<\/strong>In December 2019, COVID-19 began spreading throughout the world. On January 21, 2021, a day after taking the oath of office, President Biden issued Executive Order 13998 reasoning that \u201cmask wearing\u201d can mitigate the risk of travelers spreading COVID-19, and directed executive officials to require masks on various forms of transportation and while in transit hubs.

On February 3, 2021, CDC published the Mask Mandate without allowing public participation through the APA\u2019s notice and comment procedures.

The CDC found that COVID-19 spreads very easily between people in close contact through the transfer of \u201crespiratory droplets\u201d from one person to another. The agency said masks prevent this spread by \u201cblocking exhaled virus\u201d and \u201creducing inhalation of these droplets.\u201d

The regulation excluded children under the age of two years and persons with a disability that prevents them from being able to safely wear a mask; \u201cpersonal, non-commercial use\u201d of vehicles and commercial vehicles occupied by a single person; and situations where, for example, a person must wear an oxygen mask; or is actively \u201ceating, drinking, or taking medication\u201d; or must remove the mask to verify his identity; or to catch his breath after \u201cfeeling winded\u201d; or to communicate with someone who is hearing impaired.

Health Freedom Defense Fund, Ana Daza, and Sarah Pope filed a declaratory judgment suit declaring the Mask Mandate unlawful and to have it set aside under the APA.

Daza and Pope routinely travel by airplane. Daza has anxiety that is aggravated by wearing masks and alleged that the government does not recognize her anxiety as a basis for an exemption from the mandate. Pope alleged that the constricted breathing from wearing a mask provokes or exacerbates her panic attacks.

Health Freedom Defense Fund is a non-profit organization that \u201copposes laws and regulations that force individuals to submit to the administration of medical products, procedures, and devices against their will.\u201d

CDC Has Limited Authority
<\/strong>The Court pointed out that because administrative agencies like CDC are creatures of statute they possess only the authority that Congress has provided.

In issuing the Mask Mandate, the CDC relied on Sec. 264(a) of the Public Health Services Act of 1944 which authorizes the CDC \u201cto make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States.\u201d

\u201cFor purposes of carrying out and enforcing such regulations, the [CDC] may provide 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 his judgment may be necessary.\u201dThe Court indicated that the second sentence narrows the scope of the first. Thus if Section 264(a) authorizes the mask mandate, the power to do so must be found in one of the actions enumerated in the second sentence. \u201cA requirement that travelers wear a mask is not \u201cinspection, fumigation, disinfection, sanitation, pest extermination,\u201dThe government argued that a Mask Mandate is a \u201csanitation\u201d measure or an \u201cother measure\u201d akin to \u201csanitation\u201d. Plaintiffs disagreed, arguing that a mask requirement is outside the scope of \u201csanitation.\u201d

The statute does not define \u201csanitation.\u201d The court looked at dictionaries in 1944. They provide two senses of \u201csanitation.\u201d

First, sanitation may refer to measures to clean something or that remove filth, such as trash collection, washing with soap, incineration, or plumbing. Second, sanitation may refer to measures that keep something clean.

The court noted that while the latter definition would appear to cover the Mask Mandate, the former definition would preclude it. The court concluded that the first sense \u2013 that of active cleaning \u2013 is the meaning of \u201csanitation\u201d in Section 264(a).

Thus, sanitation is limited to cleaning measures. Wearing a mask cleans nothing. At most it traps virus droplets. But it neither \u201csanitizes the person wearing the mask nor \u201csanitizes\u201d the conveyance. Because CDC required mask wearing as a measure to keep something clean \u2013 explaining that it limits the spread of COVID-19 through prevention, but never contending that it actively destroys or removes it \u2013 the Mask Mandate falls outside of Section 264(a).

The court also noted that the first part of Section 264(a) does not give CDC power to act on individuals directly. Section 264(b)-(d) gives CDC power to directly impose on an individual\u2019s liberty interests.

Since the Mask Mandate regulates an individual\u2019s behavior \u2013 wearing a mask \u2013 it imposes directly on liberty interests, not the property interests contemplated in Section 264(a).

Section 264(b)-(d) directly regulate individuals only if they are traveling into the United States from abroad or are \u201creasonably believed to be infected with a communicable disease in a qualifying stage.\u201d

Notice And Comment
<\/strong>The APA requires that agencies provide an opportunity for the public to review and comment upon a new rule before it becomes legally binding. 5 USC Section 553(b). The CDC did not allow for public participation through notice and comment before issuing the Mask Mandate. The Court concluded that \u201cour system does not permit agencies to act unlawfully even in pursuit of desirable ends.\u201d

Observation
<\/strong>Major airlines in the United States supported the decision and said they would not require masks on their airplanes.

Does Philippine Airlines require masks? Is PAL bound by the judge\u2019s decision? Can PAL claim that like a ship it is under the control of the country it is registered with and follows the regulation of that country.

I plan to travel to the Philippines in May. Will I wear a mask if PAL requires it? If I refuse, could I avail of the excuse that the plaintiffs used in this case \u2013 that a mask causes \u201canxiety\u201d and provokes \u201cpanic attacks\u201d?<\/p>\n\n\n\n

ATTY. TIPON<\/strong> <\/strong><\/em>was a Fulbright-Smith Mundt scholar to Yale Law School where he obtained <\/em>a Master of Laws degree. He has a Bachelor of Laws degree from the University of the Philippines. He was the Dean and a Professor of Law of the College of Law, Northwestern University, Philippines. He has written law books and legal articles for Thomson Reuters and columns for Filipino-American newspapers. He and his son Noel, principal attorney of Tipon Law Office, co-host \u201cThe Tipon Report,\u201d Honolulu\u2019s most witty, informative, and useful radio show. He practices law in Honolulu, Hawaii, focusing on immigration, criminal defense, and other federal laws. Tel. 808-225-2645. E-mail: filamlaw@yahoo.com. Website: tiponlawoffice.com, hawaiiimmigrationattorney.com,  courtmartiallawyer.com<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

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