Conflicting decisions on CDC’s transportation mask mandate
May 6, 2022
Last Friday, on April 29, federal district court Judge Paul G. Byron in Orlando, Florida, ruled that CDC had the authority under Sec. 361 (a) of the Public Health Services Act (PHSA) to issue a mask mandate for transportation, including airplanes and trains, and transportation hubs, including airports, also upholding the rule requiring testing before returning to the United States from a foreign country. This contrasts with the April 18 decision of federal district court Judge Kathryn Kimball Mizelle in Tampa, Florida to strike the mandate. Judge Mizelle issued a nationwide injunction, meaning the mask mandate, was lifted across the country before it was set to expire on May 3.
One key issue where the two judges disagreed was whether the application of the major questions doctrine was appropriate when analyzing the mandate. Under the major questions doctrine, courts are not to defer to an agency’s interpretation of its statutory authority on matters of vast economic and political significance
What this means for public health
There are no clear guidelines for what constitutes a “major question.” Allowing courts the broad authority to determine what is “major” has the potential to transfer policymaking power from the federal government to the courts. Public health authorities must act quickly during public health emergencies, and different emergencies necessitate different tools. It is not feasible for Congress to specify every action CDC should take in an emergency, and so a broad application of the major questions doctrine undermines the ability of the federal government to act, especially concerning during a pandemic.
In her opinion, Judge Mizelle determined the application of the major questions doctrine was appropriate because the mask mandate “has a significant effect on the economy.” Judge Byron, on the other hand, pointed to the lack of financial burdens the mask mandate placed on travelers, determining that it was not a major question necessitating “explicit congressional delegations of power.”
Statutory interpretation
Judge Mizelle also determined that the mask mandate exceeded CDC’s statutory authority under the PHSA because, she concluded, a mask mandate is not a “sanitation” measure. To arrive at her conclusion, she first determined that CDC could only impose regulations listed in the statute. Then, after delving into the definition of the word “sanitation,” she recognized that the mask mandate could fit into the definition of a “sanitation” measure, but ruled that the more common, and thus appropriate definition of “sanitation” was “to cleanse.” Using this definition, she concluded the mask mandate would not fit into the definition of a “sanitation” measure and thus exceeded CDC’s statutory authority under the Public Health Service Act.
Conversely, Judge Byron did not see the list of examples as all-inclusive, pointing to the list’s closing phrase allowing CDC to enact “other measures, as in [its] judgment may be necessary.” He also turned to the statute’s legislative history, quoting language from PHSA drafters that PHSA provisions “are written in broader terms in order to make it possible to cope with emergency situations which we cannot now foresee.”
The regulation of public transportation, especially interstate and international travel, seems to be more clearly within the scope of CDC’s authority under the Public Health Services Act than the eviction moratorium. As Judge Byron noted, the mandates “deal with a matter of public health relating to uniquely federal issues – interstate and foreign commerce.”
After CDC’s assessment that the mandate was still necessary, the Justice Department appealed Judge Mizelle’s decision to the Eleventh Circuit. DOJ’s brief is due later this month.