How Supreme Court conservatives influenced the ruling against the CDC’s mask requirement


Tory justices have spoken out against Covid-19 measures since the start of the pandemic, including in January when the majority struck down a vaccine requirement for big business and last summer when it overturned a moratorium on evictions.

No High Court rulings have involved a federal mask requirement, as Monday’s case did, but they echoed a similar distrust of government responses to the pandemic.

“The Covid crisis has served as a sort of constitutional stress test and in doing so has exposed worrying trends that were already present before the virus hit,” Judge Samuel Alito said in a November speech. 2020 from the Federalist Society. His assertion captured the sentiment continually expressed in his opinions and those of his fellow conservatives.

Supreme Court rulings regarding vaccines and deportations were cited throughout Florida U.S. District Court Judge Kathryn Kimball Mizelle’s ruling that the U.S. Centers for Disease Control and Prevention has overstepped statutory authority and violated the procedures of the agency’s new regulations when they first imposed the mask mandate last year.

The High Court has been skeptical of a range of anti-Covid restrictions even beyond the requirements of federal agencies. In 2020, it rejected deadline extensions for mail-in ballots during the presidential election season and lifted capacity requirements at churches and synagogues.

The judges seemed impatient with the restrictions initially. Judge Neil Gorsuch wrote in a 2020 election case from Wisconsin, when he agreed with the rejection of a new mail-in ballot deadline: “Why did the district court seek to scuttle such an old tradition in this field? pandemic, the court suggested, he was free to substitute his own election deadline for that of the state. »

The conservative justices also derided the Occupational Safety and Health Administration (OSHA) vaccine requirement for interfering with daily life and freedoms.

Throughout her 59-page opinion, Mizelle, a former legal assistant to Justice Clarence Thomas, the current senior and most conservative member of the high court, echoed skepticism from the high court’s right wing with regard to the government’s assertions about the urgency of the pandemic.

“Our system does not allow agencies to act unlawfully even for desirable ends,” Mizelle wrote, citing the High Court’s decision against the federal eviction moratorium.

She cited recent High Court precedent when she found that the CDC had exceeded its statutory authority and failed to comply with the Administrative Procedure Act, which requires public notice and time to comment before the new rules come into effect.

Will the administration appeal?

This Supreme Court majority is more willing to reject federal regulations in all areas than previous courts. This model, and the sheer politics of mask mandates today, could influence whether the Biden administration decides to appeal, even if it thinks it has a strong rationale for the pandemic measure.

The Justice Department was still considering the decision on Tuesday and had yet to reveal its next decision. The rule was only to remain in place until May 3, and early public responses suggest many people were ready to throw away their masks. Most major airlines immediately declared that masks would be optional on their flights.

Andy Slavitt, acting head of Medicare and Medicaid in the Obama administration and former senior adviser to President Joe Biden on Covid-19, told CNN’s Kaitlan Collins that the court’s decision presented a dilemma.

“It’s a tricky question because on the one hand you want to appeal a bad decision. On the other hand, if they appeal and lose, they put themselves in a position where — say, in the winter or at the end of the fall, we have a very bad wave – they could put themselves in a position where they cannot demand masks at a time when they really need them.

Slavitt noted that if Mizelle’s reasoning were adopted in a chain of appeals, the administration could lose the opportunity “to hand over a warrant under more trying circumstances.”

The Supreme Court has on a few occasions allowed Covid-19 regulations to remain, such as in January when a six-justice majority upheld a vaccination mandate specifically imposed on workers in hospitals and other places that receive Medicare funding. and Medicaid.

Mizelle pitted the Centers for Medicare and Medicaid Services (CMS) vaccine rule against the CDC’s contested mask mandate, saying CMS “provided nearly four pages of reasoning (with forty footnotes from sources to the support) on why there was good reason to waive the notice and comment,” compared to the “laconic” explanation accompanying the mask mandate.

She noted that the High Court had found that the CMS’s detailed reasons warranted a “good cause” exception to the notice and comment dictate.

Exasperation with Covid rules

In the initial order that went into effect Feb. 1, 2021, the CDC emphasized that “traveling on multiple-person conveyances increases a person’s risk of contracting and spreading COVID-19.” He said masking would help stop the pandemic and build public confidence in travel and the reopening of the US economy.

Last week, when Biden officials extended the mandate originally imposed in February 2021, they said it was necessary because of the distinct risks associated with travel, in closed environments for long periods of time, and because of the increase cases of Covid-19.

Mizelle’s decision on Monday focused on the initial order.

“At the time the CDC issued the warrant, the COVID-19 pandemic had been ongoing for nearly a year and COVID-19 cases were declining,” she wrote. “This moment undermined the CDC’s suggestion that its action was so urgent that a thirty-day comment period was contrary to the public interest. … History suggests that the CDC itself did not found the passage of time particularly serious.”

His ruling echoed sentiment expressed by judges in previous cases, including an opinion from Gorsuch, Thomas and Alito as they explained why they discovered last January that OSHA had exceeded its legal authority by imposing the requirement of vaccines to large employers.

“About two years have passed since the start of this pandemic; vaccines have been available for over a year,” Gorsuch wrote in a concurring opinion joined by Thomas and Alito. “During this time, Congress has passed several major pieces of legislation aimed at addressing COVID-19.

“The question before us,” they asserted, “is not how to respond to the pandemic, but who holds the power to do so. The answer is clear: under the law as it comes up today, that power belongs to the states and Congress.”

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