President Joe Biden’s Department of Justice (DOJ) filed an opening brief on Tuesday in an ongoing lawsuit, asking the U.S. Court of Appeals for the Eleventh Circuit to reinstate the Centers for Disease Control and Prevention’s (CDC) broad-sweeping mask mandate for travel.
Trump-appointed U.S. District Judge Kathryn Kimball Mizelle in Tampa vacated the CDC’s national mask mandate covering airplanes and other public transportation in mid-April. In a 59-page decision, she said “a limited remedy would be no remedy at all” and ruled the mandate to be unlawful because it exceeded the authority of U.S. health officials. The DOJ is challenging Mizelle’s ruling in the Eleventh Circuit based in Atlanta, Georgia, alleging the mandate operated within the CDC’s purview.
The DOJ argues in its brief:
The CDC’s statutory authority explicitly encompasses sanitation measures and other similar measures and—as the district court recognized—a mask is a conventional sanitation measure. …The district court’s observation that sanitation in the context of garbage disposal, sewage and plumbing typically refers to direct cleaning of a dirty or contaminated object, is not a sound reason to adopt a cramped reading of a statute aimed at preventing the spread of communicable disease.
The DOJ also argued that doctors “have been wearing medical-grade N95 or surgical masks…during surgeries or patient interactions as part of their daily routines, for many decades,” and noted how the U.S. reportedly “led the world in mask wearing” during the 1918 flu pandemic. Ultimately, the DOJ contended that the coronavirus pandemic is “exactly the type of situation” in which the court should “give appropriate deference to the agency’s scientific expertise” and “refrain from imposing its own judgment.”
The lawsuit was originally filed in July 2021 by two individuals and the Health Freedom Defense Fund on behalf of three of its members. The judge in her order described the plaintiff as a “nonprofit group that opposes laws and regulations that force individuals to submit to the administration of medical products, procedures and devices against their will.” The plaintiffs raised three issues with the CDC’s mask mandate: they alleged the CDC lacks authorization to impose the mandate, that the mandate would have to be a standard regulation and requires public notice and comment, per the Administrative Procedure Act (APA), and that the mandate itself is “arbitrary and capricious.”
The Eleventh Circuit is known as a toss-up federal appeals court, ruling both conservatively and liberally, often depending on the combination of judges on any given panel. Should the Elevnth Circuit reverse course, the court would open the door to allow for other lawsuits to continue. A reversal could also mean a potential appeal to the Supreme Court. If the justices agreed to take the case, they would most likely have to decide whether the CDC exceeded its authority, impacting how unelected health officials dole out mandates in the future.
But regardless of how the Health Freedom Defense Fund lawsuit shakes out, there are no shortage of angry challengers waiting to rip Biden’s travel mask mandate apart. There are at least 17 lawsuits nationwide challenging the mask mandate, some brought by non-lawyers and local lawyers, and other waged by powerhouse law firms.
One such lawsuit was filed by Family Research Council Action (FRC Action) and Texas State Rep. Matthew Krause (R) against President Joe Biden and several other health and transportation agencies in late March. Filed in the Northern District of Texas, the lawsuit alleges that Biden’s mask mandate for air travel violates the APA because it is “arbitrary and capricious,” and not supported by science. The complaint argues that there is “no significant link between wearing masks and slowing the spread of COVID-19,” and noted that the air on commercial airlines is among the “cleanest and safest of any environment on earth.” The filing also points to “growing scientific literature” documenting the harms of mask wearing, especially for children. The complaint argues:
‘Unexplained inconsistency’ is a reason for holding an agency action arbitrary and capricious under the APA. And, of course, ‘[illogic and internal inconsistency are characteristic of arbitrary and unreasonable agency action. Yet that is precisely what has happened here, giving rise to serious questions that Defendants’ record does not—and cannot—answer: Why exempt one-year-olds, but not five-year- olds, as the World Health Organization does? Why say people must wear a mask when standing in an airport, but not while they are sitting, so long as they are eating or drinking for a short period of time? How does the presence of food or drink at their table lower their risk of contracting or spreading COVID-19 compared to sitting at the same table without a beverage?
The brief continues:
And what data clearly explain why the permissible time period to sit in an airport restaurant maskless is 15 minutes, instead of 10 minutes or 45 minutes? And if passengers can sit for 15 minutes without a mask when sitting in an airport restaurant, why cannot they sit without a mask for 15 minutes while on an airplane?
For that matter, given how much more heavily filtered the air is on an airplane—cleaner than restaurant air, which is what they would breathe at an airport restaurant—why are they then not allowed to remove their mask for longer than 15 minutes? These things are unexplained by the record because they are inexplicable. Each of these questions demonstrates that Defendants are acting unreasonably, illogically, and inconsistently by imposing a Mask Mandate with these features, all in violation of the APA.
District Judge Reed O’Connor paused proceedings in the FRC Action case pending a decision in the Health Freedom Defense Fund case out of the 11 Circuit, citing the Transportation Security Agency’s extended public transportation mask mandate, which has expired since the ruling out of the district court in Florida. Should the mandate be reinstated, FRC Action may apply for a preliminary injunction.
If those events unfold, FRC Action hopes it lawsuit would prevent the Biden administration or a future administration from using a crisis to commit an unlawful power grab.
“Where this emergency ends, the next one begins,” FRC President Tony Perkins told Breitbart News on Thursday.
FRC Senior Fellow Ken Blackwell accused Biden of acting as an “imperial president” and called on the federal courts to keep the branches of government operating within their respective roles as assigned by the nation’s founding fathers. Blackwell said:
It is imperative the federal courts enforce the limits that the Constitution puts on the federal government to limit the choices of the American people. This is especially true here, where Congress never gave such sweeping power to the CDC or any other agency, and so Biden is acting as an imperial president, with henchman who are declaring laws never passed by elected lawmakers who answer to the voters.
Besides FRC Action’s lawsuit against the Biden administration, both the Texas Public Policy Foundation (TPPF) and 21 states have launched complaints against the CDC’s transportation mask mandate, arguing along similar lines that the mandate is arbitrary and capricious, violates the non-delegation doctrine, and that the CDC has exceeded its statutory authority.
Matt Miller, Senior Attorney with TPPF, said :
The CDC is relying on specific and narrowly tailored provisions in the law to exercise enormously broad powers Congress has not granted the agency. If someone were to be known to have COVID-19, the agency could then take steps to prevent that person from spreading the disease to others. But the CDC has no authority to make rules that limit the freedom of millions of travelers without any evidence in the hopes it may have some preventative effect.
The 21-state lawsuit likewise accuses the government of showing “disdain” for constitutional constraints on its authority.
“Faced with a government that displays outright disdain for the limits on its power — especially when it comes to the COVID-19 pandemic — plaintiffs seek vacatur of that mask mandate and a permanent injunction against its enforcement,” the states waged.