A. The Mask Mandate Excceds the CDC's Authority under the Public Health Services Act Because "[a]dministrative agencies are creatures of statute," they "possess only the authority that Congress has provided." Natl Fed'n of lndep. Bus. v. Dep't of Lab., 142 S. Ct.661, 665 (2022) (per curiam). In issuing the Mask Mandate that requires most "persons to wear masks over the mouth and nose when traveling on any conveyance... into or within the United States," 86 Fed. Reg. at 8026, the Director of the CDC relied on a section of the Public Health Services Act of 1944 (PHSA) for authority, see 42 U.S.C. 264(a); see also 42 C.F.R. 70.2 (delegating regulatory authority under this statute to the CDC). That provision empowers him to promulgate regulations aimed at "identifying, isolating, and destroying diseases, Ala. Ass'n of Realtors v. Dep't of Health & Hum....
Other sections of the PHSA also provide the CDC with a limited power to apprehend, detain, examine, or provide conditions for the release of individuals "coming into a State or possession from a foreign country or traveling between States but only when the CDC reasonably believe|s)" that the person is "infected with a communicable disease" and is a "probable source of infection" to others. $ 264(6H(A). In that latter situation, the CDC may detain the individual "if upon examination he is "found to be infected. $ 264(d)(1). Since Congress enacted it in 1944, the PHSA has "generally been limited to quarantining infected individuals and prohibiting the import or sale of animals known to transmit disease." Ala. Ass'n of Realtors, 141 S. Ct. at 2487. It "has been rarely invoked." Id. At least until recently. Within the past two years, the CDC has found within $ 264(a) the power to shut down the eruise ship industry, stop landlords from evicting tenants who have not paid their rent, and require that persons using public conveyances wear masks. Courts have concluded that the first two of these measures exceeded the CDCs statutory authority under $ 264. See id. at 2488-89 (explaining that the eviction moratorium likely exceeded the scope of $ 264(a); Florida v. Becerra, 544 F. Supp. 3d 1241, 1272 (M.D. Fla. 2021) (Merryday, J) (reasoning that the CDC's conditional sail order exceeded the CDC's statutory authority under $ 264(a). No court has yet ruled on the legality of the third. At first blush, it appears more closely reated to the powers granted in $ 264(a) than 10 Case 8:21-cv-01693-KKM-AEP Document 53 Filed 04/18/22 Page 11 of 59 PagelD 902 either the sail order or the eviction moratorium. But after rigorous statutory analysis, the Court concludes that $ 264(a) does not authorize the CDC to issue the Mask Mandate. - https://www.documentcloud.org/documents/21636492-mask-mandate-order
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