Judge who issued mask warrant misunderstood public health law, say legal experts – WABE

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When U.S. District Judge Kathryn Kimball Mizelle rejected the federal government’s transport mask mandate on Monday, it relied in part on its interpretation of the term “sanitation”.

The 10-letter word is found in the Public Health Services Act, a sprawling law of 1944 which gave the federal government certain powers to respond to public health emergencies.

The Biden administration relied on a piece of the Public Health Services Act to defend its COVID-19 mask mandate on airplanes and other forms of public transportation.

Specifically, the law states that if the government attempts to prevent the spread of communicable diseases, it may “provide for inspection, fumigation, disinfection, sanitation, extermination of pests, destruction of animals or articles which are found to be so infected or contaminated as to be dangerous sources of infection for human beings, and such other measures as in his opinion may be necessary.

The administration argued that masks qualified as “sanitation” under the law, but Mizelle disagreed, opting for a much narrower definition of the term that would exclude measures such as face coverings. faces. Legal experts say his interpretation missed the mark.

“If one of my students gave that opinion on their final exam, I don’t know if I would agree that they got the analysis right,” said Erin Fuse Brown, law professor at Georgia State University.

“It looks like someone decided the case and then tried to disguise it as legal reasoning without actually doing the legal reasoning,” she added.

What counts as “sanitation”?

In his view, Mizelle says that a common way for judges to decide the meaning of words in statutes is to look up dictionary definitions that were contemporaneous with the passing of the law. In this case, it’s 1944.

Mizelle says “sanitation” could have meant either actively cleaning something or taking steps to keep something clean, but ultimately stops on the first definition.

“Wearing a mask does not clean anything. At most, it traps virus droplets,” Mizelle wrote. “But it does not ‘disinfect’ the person wearing the mask or ‘disinfect’ the means of transport.”

Mizelle says her reading is bolstered by the fact that other words listed alongside “sanitation” in the 1944 law – such as “fumigation” or “pest extermination” – refer specifically to cleaning something up. or the attempt to eliminate a disease.

But Fuse Brown says while this understanding of “sanitation” may hold true for laypersons, that’s not how the term is used in public health or understood by the Centers for Disease Control and Prevention. of the United States, which issued the warrant.

“Sanitation was just the old way in public health parlance of taking traditional public health measures to prevent the spread of disease,” she said.

Fuse Brown points to the widespread wearing of masks during the 1918 flu epidemicwhich came about two and a half decades before the Public Health Services Act was passed.

She suggested the advisory will make it harder for the Biden administration to control the spread of COVID-19.

“The reasoning is poor, but it also has really dramatic and disastrous consequences for public health, which not only makes it a joke, but makes it really scary,” she said.

The notice could have lasting effects on the authority of the CDC

Mizelle’s advisory also limits the CDC’s ability to respond to public health emergencies in any way it deems appropriate, and if the advisory is upheld by a federal appeals court or the U.S. Supreme Court, legal experts warn it could hamper the government’s ability to control future outbreaks.

“If that particular type of opinion has taken on greater precedent value as it progresses through the legal system, if that happens, that’s a big deal for the CDC down the road,” James Hodge said. , professor of law at Arizona State University.

Mizelle replaced his own definition of “sanitation,” Hodge said, dismissing a legal standard known as “agency deference” which requires judges to yield to the interpretation of federal agencies when the language of a statute is unclear.

Mizelle also criticized the agency for not following standard rule-making procedures before instituting the mandate. Hodge said she misunderstood how the federal government works during a national public health emergency.

“This is really a serious deviation from not only what we are trying to do to protect public health, but also an inaccuracy of federal emergency authority to a great extent,” said Hodge.

Fuse Brown agreed, suggesting the opinion amounted to “a mind-boggling amount of political judicial activism” that “should chill us all”.

“While we’re skeptical of agencies or even Congress’ ability to make good judgments right now, we certainly don’t want those decisions to be in the hands of a single unelected judge,” he said. she declared.

NPR’s Pien Huang contributed reporting for this story.

Copyright 2022 NPR. To learn more, visit https://www.npr.org.

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