Terry H. Schwadron
April 20, 2022
We flew cross-country on the day after that federal judge in Florida decided the U.S. requirements for masks in airports, planes and public transportation came down.
On our two planes, only a double handful of passengers wore covid protection, including my spouse, who just finished cancer treatments. The pilot read a careful statement asking for patience and respect for those wearing masks, opposite of the statement read a few days earlier, and basically, nothing more happened. In Dallas, where we stopped, virtually no one in sight had a mask in the airport. Maybe Stetsons and boots do a better job than masks and distancing, and federal rules remain in place to demonstrate how to buckle your seatbelt.
In our case, we also got the extra booster already that many are shunning, and our family members have been careful about testing when around one another. Put simply, for the respect of one whose immune system has been under attack, it’s no big deal to wear a mask in public transports to help protect her and others. Our live requires use of the New York City subway, which is keeping the mandate in place.
OK, this was happening in the same week that Philadelphia reinstated masks inside public places because covid cases are again on the rise, selected schools were extending protections, and caseloads in Europe and China were rising. Still, the whole individual rights question before this particular court seemed out of place since the requirement was on its last legs and literally days away from expiration. And the Supreme Court has upheld some mandate cases based on the same law, while rejecting others based on labor law or other rules.
Joe Biden said the obvious: After this court decision, it’s up to us as individuals what to believe about our health prospects in wearing a mask or not.
Though it may be moot by timing, the U.S. Department of Justice seems justified in filing an appeal, since this narrow finding that the 1944 law establishing the Centers for Disease Control lacked the power to decide on a mask requirement could affect a future breakout of covid, a mutation, or the next pandemic.
But there are plenty of aspects here that seem ripe for comment and further consideration.
For openers, once again we have a single judge in a single federal court deciding this national issue — just as we just finished a contentious U.S. Supreme Court confirmation hearing in which the Republican half of the Senate Judiciary Committee insisted, they had to oppose now Justice Katanji Brown Jackson because they saw her as a “judicial activist.”
It’s hard to get more activist that we just saw in Judge Kathryn Kimball Mizelle, who was appointed to her lifetime job by Donald Trump, at age 33 with absolutely no judicial experience and carrying a label of “not qualified” from the American Bar Assn. Apparently the difference is that she ruled in a manner that these same Republicans find acceptable.
Her 59-page decision is filled with judgments about the science, another field in which she has no experience. “Wearing a mask cleans nothing,” Mizelle wrote in her decision. “At most, it traps virus droplets. But it neither ‘sanitizes’ the person wearing the mask nor ‘sanitizes’ the conveyance.”
What happened to evidence?
A recent international research study found masks plays “a crucial role” in slowing virus spread, as reported last month in Science News. The Mayo Clinic also continues to state that “face masks combined with other preventive measures, such as getting vaccinated, frequent hand-washing and physical distancing, can help slow the spread of the virus that causes covid.”
Before her nomination, Mizelle had held a job in the Trump Justice Department that involved supervising litigation handled by the Civil Rights division. Her work prompted the Leadership Conference on Civil and Human Rights to condemn her as “an ultraconservative ideologue” and a Trump loyalist” who “worked to dismantle many critical civil-rights protections.” A Federalist Society member, she had clerked for U.S. Supreme Court Justice Clarence Thomas. Her husband, Chad Mizelle, had served as chief of staff and acting general counsel in Trump’s Homeland Security department.
But apparently, she never litigated a case in court before being given a lifetime job as a federal judge.
Upon her nomination at age 32, the Bar Association said, “Since her admission to the bar Ms. Mizelle has not tried a case, civil or criminal, as lead or co-counsel. Of her four distinguished federal clerkships, one clerkship was in the trial court. That year, plus her 10 months at a reputable law firm and approximately three years in government practice translates into 5 years of experience in the trial courts. We have taken into account the nominee’s experience in federal grand jury proceedings, which are non-adversarial and do not take place before a judge.
A Stamp of Politics
Besides the social effectiveness of this decision, there are politics stamped all over it.
The ruling left it to individual airlines and local transit agencies to decide what to do, and they split. Most airlines were glad to be rid of the headache (and passenger fighting) over enforcement. Amtrak and larger city transport agencies are keeping the mask requirements in place.
The CDC now finds itself unable to issue any public health mandates if it decides that the disease is returning. We must wonder to make of a thoroughly beaten-up CDC over both the Trump and Biden years. Instead of solutions, we hear Republicans demanding the firing of top virologist Dr. Anthony Fauci, who is at the National Health Institutes, not CDC, and see the appointment of believers in alternative science as health director in states like Florida.
Because of these court decisions, the Biden administration comes across like Keystone Kops running in scattered directions about taming still-dangerous public health while Americans insist that they would rather just forget about covid.
White House Press Secretary Jen Psaki called the decision “disappointing” in part because it magnified by Republicans’ cynical politicization of the judiciary with a decision by a judge who was not about to be deterred by science.
Republicans rose on their hind legs to bay about the injustice of mask mandates all over again.
In this same couple of weeks, the administration is trying to lift an immigration rule that uses covid-based thinking to keep migrants in Mexico, and politicians on both sides of the aisle are saying it makes no sense if we’re saying that the CDC can’t set mandates altogether. Others are saying we shouldn’t take an immigration without a more complete response plan in place.
Too bad we can’t get a mandate for effective policymaking.