US District Judge Kathryn Kimball Mizelle relied on three independent grounds in invalidating the mandate.Hinderaker correctly called that last item, that the government would appeal immediately before the CDC reconsiders things under the remand order.The court concluded that vacating the Mask Mandate rule was the appropriate remedy for the CDC’s violations of the Administrative Procedure Act. The court further ordered the Mandate remanded to CDC for further proceedings consistent with her order. I (i.e., Hinderaker) assume the government can appeal notwithstanding that remand, and will promptly move for a stay on enforcement of today’s order in the 11th Circuit Court of Appeals.
- It exceeded the statutory authority that Congress has delegated to CDC under the 1944 Public Health Services Act, 42 U.S.C. § 246(a). The Biden administration argued that the mandate is justified by a reference in that section to “sanitationmeaning of the word “sanitation” in context to conclude that the mask requirement is not “sanitation” within the meaning of the statute.
- It is a rule that was adopted without the required public notice and comment period. The government claimed that the mask mandate was covered by the “good cause” exception that allows an agency to proceed without public input when a notice and comment period would be “impracticable, unnecessary, or contrary to the public interest.” The exception is narrowly construed and the burden is on the agency to show that it applies. In this case, the CDC simply recited the statutory standard in conclusory form without making any showing that notice and comment would, in fact, be “impracticable, unnecessary, or contrary to the public interest.” The court understandably found this to be inadequate.
The court accepted CDC’s claim that wearing masks would, in fact, retard the spread of covid. But that assumed fact does not constitute “good cause” for proceeding without notice and public comment, or else that requirement would be a dead letter for any action undertaken by CDC.
CDC argued further that a public comment period would have been useless because the agency’s mind was already made up. The court understandably rejected this theory, noting that the rule directly impinged on individual freedom; thus the public had a strong interest in being heard.
- The Mask Mandate was arbitrary and capricious because the CDC articulated no rationale for the agency’s rejection, or failure to consider, alternative measures, or for its system of exceptions
-PJ
The Admin assumes the virus will be back in the fall. They're probably be right - viruses gonna virus. If so, if uncontested, the CDC will do their silly stuff again with impunity come Sept-Dec.
This ruling effectively blocks the CDC from cranking up the mandates, right into time for the midterms. The Admin has to fight it, in order to keep this madness going.
But the vast majority of the masks used by the public do NOT retard the spread of the virus so a general assumption of efficacy is untrue.