Fortunately, my flight from Mexico City to Washington, D.C., had just landed and we were taxiing to the gate by the time my iPhone flashed a news alert that Judge Kathryn Kimball Mizelle, a Trump-appointed district court judge in Florida, had overturned the Biden administration’s mask mandate for airlines and other public transportation. That may have spared me the victorious whoop from the cockpit that I’m told was heard on other flights that day.
The airlines had been trying to persuade President Joe Biden to end the mask mandate—a mandate, by the way, that still enjoys support among 56 percent of Americans. But airline employees don’t like it—mainly, according to the Financial Times, because they’ve grown bone-weary from telling defiant air travelers to put on their goddamned masks. Air travelers are perhaps the most obnoxious customers in America, and the mask requirement only made them behave even more like children. Last year, there were an astonishing 5,981 reports of unruly behavior among air passengers, of which 4,290 were mask-related. (A pitiful 350 of these resulted in even the mere initiation of enforcement actions.)
It was strange, after spending five days in a country that still takes the Covid threat very seriously, to return to a country that does not. Daily average cases in Mexico right now add up to fewer than 1 per 100,000, compared with 13 per 100,000 in the United States. For Mexico City and Washington, D.C., the comparable figures are 3 and 31. You are more than 10 times likelier to get Covid in the United States than in Mexico. Yet in Mexico City I couldn’t enter any indoor space without putting on a mask, getting my hand squirted with hand sanitizer, and sometimes getting my pants sprayed with disinfectant. When my wife and I arrived, my son, who lives there, was thrilled that an outdoor mask mandate had just been lifted. The United States never even considered such a mandate.
Mexican culture is known the world round for fetishizing death—I’m not the first tourist to come home with a refrigerator magnet showing a human skull adorned with brightly colored flowers—but don’t confuse fascination with fatalism. Mexicans know all too well that death exists, and they wish fervently to avoid it. Here in the United States, we pretend that death doesn’t exist (even as nearly one million of us succumb to Covid) and we categorize grieving as a mental illness. Silicon Valley tycoons invest vast fortunes in harebrained schemes to achieve immortality because, as Oracle’s co-founder and chief technology officer, Larry Ellison, observed hubristically, “Death has never made any sense to me.” To which the essayist Michael Kinsley replied in his 2016 book Old Age: A Beginner’s Guide: “The question is not whether death makes sense to Larry Ellison but whether Larry Ellison makes sense to death.”
That’s the political environment the Biden administration had to navigate in considering whether to appeal Monday’s court ruling against the mask mandate. It took a couple of days for Biden to decide—partly, according to an NBC News report, because the administration was weighing whether to end the mask mandate within a week or two. At one point, Biden said he’d challenge Mizelle’s ruling if the Centers for Disease Control thought it medically necessary. But quite apart from any public health considerations (which I’m ill-equipped to assess), Biden had no choice but to appeal. That’s because Mizelle—a former Clarence Thomas clerk whom the American Bar Association rated “not qualified” based on insufficient experience when she was nominated in 2020—wasn’t repealing only a mask mandate. She was also advancing a slow-motion conservative assault on the post–New Deal regulatory state.
We have this federal agency. It’s called the Centers for Disease Control. It was created after World War II to, well, control disease. There isn’t much point in having one if it can’t do that. Starting in the late 1930s (notably, after President Franklin Roosevelt threatened to expand the number of justices on the Supreme Court to get his New Deal policies approved), the Supreme Court gave Congress broad discretion under the Commerce Clause to regulate interstate commerce. Since almost anything could be called interstate commerce, this doctrine allowed the modern regulatory state to be born.
One of the earlier laws passed under this new regime was the 1944 Public Service Health Act, which directed the federal government
to make and enforce such regulations … necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession. For purposes of carrying out and enforcing such regulations, the [government] may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures [italics mine] as in [the government’s] judgment may be necessary.
In her decision, Mizelle noted that a federal district court in Florida sided with the state’s Republican governor, Ron DeSantis, in throwing out CDC regulations intended to prevent the spread of Covid on cruise ships and that the Supreme Court sided with the Alabama Association of Realtors in throwing out a Biden administration moratorium on evictions. Both rulings, she wrote, turned on the statutory language cited above. “At first blush,” she conceded, the mask mandate “appears more closely related to the powers granted” by that language. “But after rigorous statutory analysis,” she found a way to throw out the mask mandate, too.
Mizelle’s “rigorous statutory analysis” consisted of
- Pretending the phrase “and other measures” wasn’t in the statute (following the blinkered lead of the Florida district court and the Supreme Court)
- Looking up the word sanitation in two dictionaries from the 1940s—Webster’s New International and Funk & Wagnall’s New Standard—and finding they limited their definitions of sanitation to the act of cleaning stuff. Wearing a mask is not cleaning stuff!
Awkwardly, a third dictionary, from 1951, The Simplified Medical Dictionary for Lawyers by Bernard S. Maloy, which sounds like a much more appropriate source in this context, didn’t give Mizelle the answer she was looking for. It cited as examples of “sanitation” air filters, barriers, and … oh, yes, masks, gowns, and other personal protective equipment. Masks and gowns are not used to clean stuff. And the Biden mandate was specifically about masks. Rats!
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What was an originalist like Mizelle to do? She decided to believe that a medical dictionary for lawyers published seven years after enactment of the Public Service Health Act would not be a very good place to locate the meaning of a medical term as a lawyer would have applied it. Instead, she contorted herself in 12 ways to conclude that “cleaning stuff” was the proper definition of the word sanitation back in those great days when Bing Crosby and the Mills Brothers ruled the airwaves and folks didn’t sit under that apple tree with anyone else but me.
Stephen L. Carter, the Yale law professor and bestselling novelist, found in a 1949 Navy Department guide for sanitation officers the following definition of sanitation: “the successful adjustment of the environment to the body so that disease is prevented and public health is promoted.” Which would appear to allow for masks. Because he was writing on deadline (for Bloomberg), I doubt he spent much time looking.
As I’ve written before, the right’s big brass ring is to overturn the Supreme Court’s 1984 decision in Chevron v. Natural Resources Defense Council, which seemed at the time, believe it or not, to be a conservative ruling, but now stands as the only bulwark against virtually closing down regulatory agencies entirely. In the meantime, the game is to narrow the reading of statutory language in dishonest and capricious ways so that federal protections for health, safety, and economic security, many dating back to the Roosevelt administration, can be gutted—even in times of emergency. It amazes and appalls me that the political party advancing this goal enjoys any popular support at all, much less that it likely will win back control of Congress in November. Please don’t let it happen.
