No matter how you feel now about masks, you should be alarmed by her decision. Judge Mizelle’s ruling could prevent the federal government from effectively and nimbly responding to future pandemics. And long after this pandemic has faded, her approach and rationale could undermine the federal government’s authority to confront other big problems, from occupational health and safety to climate change.
The Biden administration has appealed the decision to the U.S. Court of Appeals for the 11th Circuit, but that carries its own risks. Six of the 11 active judges on that court are Trump appointees. A loss there by the Justice Department could permanently weaken the government’s authority to respond to health emergencies.
Up until very recently, the statutory authority of the Centers for Disease Control and Prevention to try to curb the interstate or international transmission of an infectious, deadly disease was not in doubt. The Public Health Service Act authorizes the C.D.C. to “make and enforce such regulations” that in its “judgment are necessary to prevent the introduction, transmission or spread of communicable diseases.”
The law provides that the C.D.C. can enforce “sanitation” and “other measures” to achieve this goal. The transportation mask requirement is crucial to the agency’s ability to meet its congressional mandate because travelers in a pandemic can unknowingly carry a virus across the country, dispersing it along the way.
Since the New Deal, federal courts have generally declined to strike down reasonable agency regulations. And for good reason. In writing laws, Congress cannot envision or micromanage every possible scenario. Unexpected events — say, perhaps, a global public health crisis — create novel challenges. So, Congress delegates rule-making power to agencies, which develop and issue evidence-based regulations to combat complex problems.