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Last week, Judge Kathryn Kimball Mizelle handed down a sweeping 59-page opinion in which she struck down the Biden administration’s requirement that passengers wear masks on airplanes, trains, and similar methods of transportation. Mizelle reasoned, among other things, that the word “sanitation” in the Public Health Service Act, a sprawling 1944 law that grants the federal government powers to respond to public health emergencies, precluded the government from halting the spread of disease unless something specific was being cleaned. Lawrence O. Gostin, university professor and director of the O’Neill Institute for National and Global Health Law at Georgetown University, joined Amicus to discuss Mizelle’s reading of the statute, as well as some other broad claims she made about the scope of personal liberty. Our conversation has been lightly edited for clarity.
Dahlia Lithwick: A lot of legal commentators, from both the left and the right, have made essentially the same point that Judge Mizelle’s definition of sanitation would preclude the CDC from having, just for example, rules that kept people from urinating on an airplane, because that’s also not “cleaning” the way she describes it. So really what it sweeps out is so much of what we consider public health. And as you say, it does it in this way that is really selecting the most tortured dictionary definition of “sanitation.”
I do want to stay for one minute on that second point and that is her “liberty” analysis. She writes that people are forcibly being “removed from their airplane seats, denied boarding at the bus steps, turned away at station doors, all on the suspicion that they will spread a disease. Indeed, the mask mandate enlists local governments, airport employees, flight attendants, ride sharing drivers to enforce removal measures.”
She is making this massive liberty point. And it’s such a funny thing to invoke the idea that you have vast liberty rights to get on planes without a mask, but you actually don’t have those liberty rights in a whole bunch of other contexts, including reproductive freedom.
Larry Gostin: Yeah, that’s right. Let me just dig in a little further on these things. Just from a commonsense point of view and for your listeners, if truly the CDC only had the power to sanitize, it would be useless. Sanitation is useless against COVID-19. It could do nothing to protect the American public. And then, on liberty, I’ve been just struck by the modern conservative ideological notion of liberty, because traditionally, if you look at conservatism, stopping the spread of infectious diseases was always the exception to liberty.
That is, you have a liberty interest to do anything you want to your own body that is self-regarding behavior, but nobody has the liberty of transmitting a potentially lethal infectious disease to another person. That’s never been the understanding of liberty since John Stuart Mill. I know of no intellectual position that would say that a person has the right to take measures that are likely to transmit an infection to others that could potentially kill them.
Lithwick: That’s Jacobson v. Massachusetts, right? That’s simply, your liberty interests end when you are spreading smallpox around.
So let me ask you about a thing that’s been worrying me in all sorts of contexts: the complete death of deference to federal agencies. There is a long-standing tradition that, for the most part, if a statute is ambiguous, if the agency interpretation is reasonable, judges are meant to defer. That is how in fact we get to the place, as you noted, where millions of scientists get to make decisions and federal judges can’t second-guess them.
In addition to Judge Mizelle saying that the meaning of “sanitation” is not ambiguous and the CDC’s interpretation of sanitation is just not reasonable, she then says, anyway, we wouldn’t defer because this is a major question and Congress needed to speak more clearly. So it feels like this is a bit of a one-two punch, right? This is both decreasing deference to agencies and using this “major questions doctrine” to say that if it’s a big deal—as indeed masks are—then Congress has to speak specifically. And this feels really as though it’s of a piece with this longer-term project of just making it impossible for agencies to do anything at all.
Gostin: Clearly the conservative project is to dismantle the regulatory state and a lot of people think the regulatory state is just a lot of federal bureaucracy. But the truth is that if we want a clean environment, if we want to be protected against dangerous pathogens, if we want to go to work and be safe, if we want to buy a toy and be sure that toy is safe, you absolutely have to allow administrative agencies to do their job.
The major questions doctrine is really insidious because basically it says that an agency can’t do anything that is important. Right now, we’re in a pandemic. Ending the pandemic is kind of important. And we don’t want to handcuff the CDC in doing that. And in any case, when Congress authorizes an agency to act, it understands two things. First, that Congress itself doesn’t have the expertise. That the expertise lies in career scientists and others in federal agencies.
But it also recognizes that Congress can’t possibly anticipate all of the harms that would come to the American public in the future. And so in 1944, we could not have imagined that you would have a virus that was so infectious, that was aerosolized, that could evade immune responses, that could cause nearly a million deaths in the United States. Wouldn’t the public want the CDC to be able to act nimbly and decisively in handling that problem? Wouldn’t anybody, whether you’re conservative or liberal, Democrat or Republican? At this point, it’s hard to understand the antipathy to public health agencies, to CDC, to science itself, to evidence itself.
Lithwick: On the question of the Biden administration’s decision to appeal, I saw you were quoted in the New York Times last week saying you’re in a position of having two horrible choices. You either risk forever taking away the CDC’s power, or you let what feels like a lawless decision just chill the CDC from doing things that it needs to do in the future. This is a lose-lose for the administration.
Gostin: This is definitely a Hobson’s choice. It’s lose-lose. I’ve spent quite a bit of time talking to the White House about this and the Justice Department. It is a hard decision for them. Essentially, they want their cake and to eat it too. They want to publicly state that they don’t accept Judge Mizelle’s arguments at all, and that the CDC absolutely does have this power.
But they don’t want to risk an adverse ruling in the 11th Circuit. And if it went to the Supreme Court? I kind of suspect, and maybe this is wishful thinking, but I kind of suspect the Supreme Court would uphold the mask mandate because it’s so central to the prevention of the interstate transmission of disease. But they would nonetheless significantly narrow the Public Health Service Act and get to the edge of declaring a major questions doctrine. So those are incredibly important legal risks, but they’re not just legal risks—they’re public health risks if you get an adverse ruling. And the other reason is that CDC was probably going to drop this mandate on May 3 anyway, before the drama of the courts.
Lithwick: I feel like this goes to another argument you’ve been making, which is, in some sense, the chaos is the point. In some sense, it’s very, very useful, if you oppose the CDC, and you oppose federal agencies and a regulatory state, to just have complete chaos. And I think we could agree, if on nothing else … that the confusion of the airlines making the determination—and you’ve got folks in midair ripping off their masks and flight attendants who are reasonably just delighted that they do not have to enforce this anymore—this is the opposite of a well-handled and orderly public health action. You’ve used the term “COVID culture war,” and you’ve mentioned again on the show today how politicized this is. But it does feel as though every time you establish more chaos in the system, it slightly erodes trust in the CDC, and it slightly erodes trust in public health. And that feels like a massive, massive losing battle here.
Gostin: Absolutely. As I said at the beginning of the show, it’s hard for me to think of a more ruinous way for the COVID-era masking to end than at the hand of a single federal judge in Florida. That’s why federal judges shouldn’t be making these decisions, because it has introduced utter chaos, I guess, by design. Because she could have waited and this would’ve lapsed. People who are vulnerable, compromised, the elderly, children under 5 who can’t be vaccinated, are all scared to death about flying as people are ripping their masks off. And then most airlines are not enforcing it. Some are enforcing it. It’s just utter chaos. And if that was the judge’s intent, she was successful. But the better way would’ve been to allow career scientists to evaluate the evidence, look to see if we have our hospitals filling up, and then making a planned, orderly decision to either lift or continue the mandate. Wouldn’t that have been a better outcome?
But that’s not the America we live in now. The America we live in is just do it, no matter what the cost. In this case, the cost is death. But you just stand by your guns and you make your political point. If we can’t come together in a once-in-a-lifetime health crisis, I don’t know when we can. … And so I think conservatives should be careful what they wish for. Because one day there will be a really major threat to America and you don’t want CDC to be diffident. You want them to act nimbly and decisively, and all that’s happened during COVID is going to mean the opposite. That CDC will be reluctant to act when we need them.
