December 7, 2022

Florida, other states target mask requirement

State Attorney General Ashley Moody and other Republican politicians from across the country urged an appeals court this week to uphold a Florida federal judge’s ruling that blocked a mask requirement on airplanes and in other transportation during the COVID-19 pandemic.

Moody’s office, taking the lead in a brief filed by officials from 23 states, described the mask requirement as “overreach” by the federal Centers for Disease Control and Prevention.

Tampa-based U.S. District Judge Kathryn Kimball Mizelle in April struck down a requirement that travelers wear masks in airports and on planes, trains and buses. Federal officials stopped enforcing the requirement after the ruling, but the CDC appealed to the 11th U.S. Circuit Court of Appeals.

In the friend-of-the-court brief filed Monday, lawyers in Moody’s office made a series of arguments, including disputing the CDC’s contention that it had the authority to order travelers to wear masks. In part, the CDC cited authority to impose “sanitary” measures.

“In context, ‘sanitation’ authorizes CDC to demand cleaning, but it does not authorize CDC to require any action that may result in cleanliness, much less on a nationwide basis,” lawyers in Moody’s office wrote. “A mask does not clean anything. Rather, it traps respiratory droplets in place, without regard to whether infection is present.”

But in a May 31 brief filed at the Atlanta-based appeals court, U.S. Department of Justice attorneys wrote that the mask requirement “falls easily within the CDC’s statutory authority, which includes measures that ‘directly relate to preventing the interstate spread of disease by identifying, isolating, and destroying the disease itself.’”

“Masks do exactly that: They isolate the disease itself by trapping viral particles exhaled by infected travelers and preventing non-infected travelers from inhaling viral particles,” the Justice Department attorneys wrote. “The CDC’s statutory authority explicitly encompasses ‘sanitation’ measures and — as the district court itself recognized — a mask is a conventional sanitation measure.”

Requiring travelers to wear masks on airplanes was highly controversial, with many people objecting and flight attendants left with the difficult task of trying to enforce the measure. Republican politicians attacked the requirement as part of criticism of the Biden administration’s handling of the pandemic.

In addition to the brief filed Monday by Moody’s office, 17 members of the U.S. House and U.S. Senate, including Florida Congressmen Brian Mast and Bill Posey, sought approval Monday to file a brief in support of Mizelle’s ruling. In a copy of the brief attached to the request, they alleged the CDC had overstepped its authority.

“In particular, (the members of Congress) take the position that the Centers for Disease Control and Prevention lacked congressional authority to enact and implement the mandate via the statutes it cites as granting it authority to do so,” lawyers for the U.S. House and Senate members wrote.

Mizelle’s April ruling came in a lawsuit filed last year by the Health Freedom Defense Fund and two individual plaintiffs. In a separate case, Orlando-based U.S. District Judge Paul Byron later backed the CDC’s mask order. An appeal of that ruling also is pending at the 11th Circuit.

In her ruling, Mizelle, who was appointed to the federal bench by former President Donald Trump, wrote that the mask requirement exceeded the CDC’s authority under a law known as the Public Health Services Act and refuted that the requirement was a legal sanitation measure.

“The government interprets ‘sanitation’ and ‘other measures’ to include traditional techniques that impede the spread of disease,” Mizelle wrote. “One definition it relies upon is even broader, defining ‘sanitation’ as the ‘applying of measures for preserving and promoting public health.’ If Congress intended this definition, the power bestowed upon the CDC would be breathtaking. And it certainly would not be limited to modest measures of ‘sanitation’ like masks.”

Mizelle also ruled that the CDC violated the federal Administrative Procedure Act, in part because it did not give the public proper time to review and comment on the mask rule before it was put in place. Also, she wrote that the requirement was “arbitrary and capricious” because the CDC didn’t adequately explain its reasoning.

Moody was joined in Monday’s brief by attorneys general from Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, Texas, Utah, Virginia and West Virginia and the solicitor general from Iowa.

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