by Atty. Emmanuel S. Tipon
When it comes to writers attacking judges whose decisions they do not like, here’s 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.
On April 18, Judge Kathryn Kimball Mizelle, a US district judge in Florida, declared unlawful and vacated the “mask mandate” 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’s 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. U.S. Dist. Ct., Middle Dist. of Florida, Tampa.
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’s Transportation Security Administration.
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’s decision effectively put that extension on hold.
Most people rejoiced at the decision, shouting “Free at last.” TSA announced that it would no longer enforce the mask requirement.
Biden reportedly commented when asked what travelers should do: “That’s up to them.” White House Press Secretary said that “People are not legally bound to wear masks.”
But the Biden administration’s 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.
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 “mask wearing” 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’s notice and comment procedures.
The CDC found that COVID-19 spreads very easily between people in close contact through the transfer of “respiratory droplets” from one person to another. The agency said masks prevent this spread by “blocking exhaled virus” and “reducing inhalation of these droplets.”
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; “personal, non-commercial use” 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 “eating, drinking, or taking medication”; or must remove the mask to verify his identity; or to catch his breath after “feeling winded”; 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 “opposes laws and regulations that force individuals to submit to the administration of medical products, procedures, and devices against their will.”
CDC Has Limited Authority
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 “to 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.”
“For 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.”The 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. “A requirement that travelers wear a mask is not “inspection, fumigation, disinfection, sanitation, pest extermination,”The government argued that a Mask Mandate is a “sanitation” measure or an “other measure” akin to “sanitation”. Plaintiffs disagreed, arguing that a mask requirement is outside the scope of “sanitation.”
The statute does not define “sanitation.” The court looked at dictionaries in 1944. They provide two senses of “sanitation.”
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 – that of active cleaning – is the meaning of “sanitation” 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 “sanitizes the person wearing the mask nor “sanitizes” the conveyance. Because 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 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’s liberty interests.
Since the Mask Mandate regulates an individual’s behavior – wearing a mask – 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 “reasonably believed to be infected with a communicable disease in a qualifying stage.”
Notice And Comment
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 “our system does not permit agencies to act unlawfully even in pursuit of desirable ends.”
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’s 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 – that a mask causes “anxiety” and provokes “panic attacks”?
ATTY. TIPON was a Fulbright-Smith Mundt scholar to Yale Law School where he obtained 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 “The Tipon Report,” Honolulu’s 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: firstname.lastname@example.org. Website: tiponlawoffice.com, hawaiiimmigrationattorney.com, courtmartiallawyer.com