COVID-19 caught the United States unprepared and unwilling in some ways to defend itself against the viral pandemic that has now taken nearly a million American lives. More than 400,000 had been lost by the time Joe Biden, on his first day as president, ordered face-masking across an array of federal agencies. His predecessor had been scornful of it.
There is no reasonable doubt that masks have saved lives, eased the burden on hospitals and helped Americans return to a semblance of normalcy. But a key element of that defense has been swept away by a Florida-based federal judge’s ludicrous interpretation of the word “sanitation” in a 1944 law to mean only cleaning and to disallow face masks. For now, at least, the government is powerless to mandate masking in public transportation, even with infections rising again.
The nation is newly more vulnerable to the next inevitable pandemic and to more of COVID-19′s frequent mutations.
This is the result of how Donald Trump and Senate Republicans damaged the federal judiciary by packing it with people obsessed with “textualism.” It is a legal doctrine that means taking words as literally as possible, regardless of changed circumstances or common sense.
To extend the mask mandate ruling by U.S. District Judge Kathryn Kimball Mizelle to its ultimate absurdity, the CDC could require airline, train and bus companies to do nothing more than wipe down everything with Lysol.
In her fixation on the word “sanitation” in the 1944 Public Health Service Act, Mizelle deftly ignored a subsequent phrase “and other measures, as … may be necessary.”
Yet she conceded the CDC’s finding that the mandate would limit transmission of the disease and reduce serious illness and death. But she added that it wasn’t enough “to establish good cause.”
Mizelle was on firmer ground in holding that the CDC impermissibly skirted legal requirements for public notice and comment, but that’s easily fixable. Her textualist fantasy, however, can be overcome only by an appeal or by a new law.
The Biden administration has no practical option other than to appeal, which it is doing. Given how COVID-19 precautions have been politicized, congressional action would be at best too slow and perhaps impossible.
An appeal has its own obstacles, which could have even more damaging results. The first stage of an appeal is in the Atlanta-based U.S. Court of Appeals for the 11th Circuit, where a series of Trump appointments, including two from Florida, have skewed the court to the right. It now has seven judges appointed by Republicans and only four chosen by Democratic presidents.
Beyond lies the Supreme Court, which has already made a mixed record on COVID-19 defenses. With a 6-3 conservative majority — again due to Trump and the Republican Senate — it overturned the CDC’s moratorium on evictions as well as OSHA’s mask mandate for larger businesses. On the other hand, it upheld mandates for military personnel and vaccination requirements for health workers.
Historians in the future will surely be as astonished as many people are today at how vaccination and face-masking, two of the proven front-line defenses against deadly diseases, became the fulcrums of political division between Republicans and Democrats. It is reflected in death statistics as well as in public opinion polls.
Opportunistic state leaders like Florida's Gov. Ron DeSantis and Attorney General Ashley Moody are to blame for fostering and exploiting that division. With the privately financed lawsuit against the CDC already nearing a decision before Mizelle at the U.S. District Court in Tampa, DeSantis and Moody led 20 other Republican states in filing yet another in the same court against the CDC and other federal agencies. Perhaps long before any court rules, it will pay off handsomely in their fundraising.
Mizelle’s appointment exemplifies how not to pick a judge to serve for a lifetime. With the Senate still controlled by the Republicans in December 2020, after Trump’s defeat, she was nominated by the lame-duck president and confirmed on a 49-41 party-line vote, despite being rated “not qualified” by the American Bar Association’s Standing Committee on the Judiciary. It cited her relative inexperience — she was 33 at the time — having been a lawyer only eight years, and alleged that she had not tried to completion a civil or criminal case as a lead or co-counsel.
Civil rights organizations objected to her record as a Justice Department attorney in helping to rescind Title IX guidance that protected transgender students and to filing a brief arguing in the Supreme Court that businesses have the right to discriminate against LGBTQ customers.
What undoubtedly mattered more to Trump was that she had been a law clerk to Supreme Court Justice Clarence Thomas and belonged to the Federalist Society, Trump’s go-to source for lifetime judicial appointments. She reportedly referred to Thomas as “the greatest living American.”
The Society is also one of DeSantis’ litmus tests for judicial appointment. The group exalts textualism in the interpretation of constitutional and statutory language. It’s a convenient pretext for rejecting anything the authors of the state and federal constitutions did not explicitly foresee — like a pandemic.
Republicans unabashedly promise more of the same if they regain control of the U.S. Senate and return Trump to the presidency. Marco Rubio, Florida’s senior senator, hailed Mizelle’s decision and took credit for recommending her. That bears remembering in November.
———
