The coronavirus pandemic may feel like a past-tense phenomenon for many Americans, even though the dangers are real and ongoing. But a federal judge appointed by Donald Trump just did everything she could to send the nation back into chaos.
On Monday, Judge Kathryn Kimball Mizelle in Florida threw out the Centers for Disease Control and Prevention’s mask mandate for air travel and other forms of mass transportation. Deaths from COVID-19—and the mask mandates intended to prevent them—may be on the wane nationwide, but whatever you think about such policies, this is the latest and most egregious example of a judge acting as a partisan warrior in the COVID-19 culture wars.
Mizelle was appointed to the federal bench by President Trump in 2020. She was 33, and had been practicing law for only 8 years. She had never tried a case as a lead attorney. The Senate confirmed her even though the American Bar Association gave her a rating of “not qualified.” This nominee should have been rejected by the Senate not because of her judicial philosophy and not because of her age, but because she simply didn’t have the credentials and experience to be a federal judge with lifetime tenure.
Now she is substituting her opinion for that of scientific professionals at the CDC, and dictating health policy in America. The outcome could be disastrous, only serving to further embolden the right-wing activists who dispute the reality of this horrifically lethal pandemic.
The CDC first issued a public health order requiring masks in interstate transportation and at transit hubs in February 2021, and it didn’t take long for anti-mask diehards to make getting on a plane or train a nerve-wracking proposition. Still, the Transportation Security Administration (TSA) issued security directives to enforce the CDC order, and the CDC and TSA have extended that mandate throughout the pandemic. Just last week, the CDC extended the mandate for 15 days, until May 3.
That was wise. Parts of America are experiencing a surge in new infections due to the BA.2 subvariant of Omicron. There is usually a lag between cases and hospitalizations and deaths. CDC made the sensible decision to wait and see if our hospitals will be overrun in the days and weeks to come. I don’t think we will see a huge surge in hospitalizations and deaths, but the CDC wanted more time to evaluate the situation.
Mizelle claimed in her ruling that the transportation mask mandate exceeded the CDC’s powers, but nothing could be further from the truth. The CDC is acting at the very core of its mandate when working to prevent the interstate spread of a dangerous infectious disease at, to take one important example, the nation’s airports. It’s actually hard to imagine a clearer case of a legitimate federal public-health power.
Language in the ruling comes right out of MAGA talking points. Mizelle writes that passengers are “forcibly removed from their airplane seats, denied boarding at the bus stop, and turned away at the train station door.” Of course, none of that would happen if a law-abiding citizen actually put on his or her mask to protect other passengers and their loved ones—especially the vulnerable.
Judge Mizelle says that enforcing such a mandate is akin to “detention and quarantine,” which she claims is beyond CDC’s remit. Really? The CDC operates under what has long been called the “quarantine regulations.” The statute in question—the Public Health Services Act—has been in use since 1948, and was designed to prevent interstate and international transmission of dangerous infectious diseases.
In response to the ruling, Biden administration officials have reportedly indicated the TSA will not enforce the mask mandate, at least for now, and some airlines have begun announcing mask rules are effectively over. But that could change when we learn whether the administration will appeal or win some kind of stay of the ruling. In the meantime, the order will sow chaos and confusion at the nation’s airports. That includes the very real potential of renewed verbal abuse—if not physical violence—against staff who have already endured a massive surge of both during the pandemic, and may still insist on safety from passengers.
Rogue judges, at one time or another, have neutered virtually every major COVID-19 risk mitigation order issued by the Biden administration. But if this order can be nullified, there is literally nothing the CDC or the federal government could do to fight COVID-19. Even worse, the ruling may serve to handcuff the CDC when the next health crisis hits. The agency may become gun-shy, afraid to exercise even the most urgently needed public health powers, and conservative activists who have long made headlines for travel crimes and misconduct will feel vindicated.
Of course, we are all dispirited by seemingly never-ending COVID-19 restrictions. And it’s easy to understand the frustration in the airline industry as staff have to enforce a federal mandate. But, even at current, very low COVID-19 rates, hundreds of Americans are dying every day. Now is not a good time to simply give up on measures needed to protect the public.
It may well be that the CDC will lift the mask mandate on May 3. So why the rush to strike it down now other than to score partisan points? And why should we be surrendering public health policy to the MAGA crowd?
Let CDC make the call based on science. And don’t handcuff public health agencies during this pandemic—and for future health emergencies that are almost certain to come.