The DOJ Is Reluctant To Continue Defending the CDC’s Mask Mandate Because It Worries It Will Lose Again

The Justice Department yesterday said it would appeal the decision vacating the federal mask mandate for travelers if the Centers for Disease Control and Prevention (CDC) decided that the rule “remains necessary for public health.” Spokesman Anthony Coley added that the department “continues to believe that the order requiring masking in the transportation corridor is a valid exercise of the authority Congress has given CDC to protect the public health.”

If Congress had indeed given the CDC a blanket power “to protect the public health,” the mask mandate would clearly fall under it. But whether the Constitution allows the legislative branch to delegate such vast authority to an executive agency is another issue. So is the question of whether Congress itself has such broad authority, which would overlap with powers reserved to the states under the 10th Amendment.

Given the sweeping contemporary definition of “public health,” that authority would encompass not just measures aimed at controlling communicable diseases but also any policy designed to reduce morbidity and mortality, including a wide range of paternalistic interventions. But while the CDC might like to exercise such power, it is plainly beyond the agency’s statutory authority and the powers that the Constitution gives the federal government.

The central issue in Health Freedom Defense Fund v. Biden, the lawsuit challenging the CDC’s mask mandate, was narrower: whether the Public Health Service Act of 1944—specifically, 42 USC 264(a)—gave the agency the power to decree that people who fly on commercial airplanes, use mass transit, or travel in taxis or ride-sharing cars must wear face masks. Kathryn Kimball Mizelle, a federal judge in Florida, concluded that the CDC did not have the power it asserted.

The mandate’s supporters seem determined to obscure what was at stake in this case. “Public health decisions shouldn’t be made by the courts,” White House Press Secretary Jen Psaki told reporters yesterday. “They should be made by public health experts.” But Mizelle did not make a public health decision; she made a legal decision, based on her understanding of the relevant statute.

Contrary to Psaki’s implication, courts are not only authorized but obligated to make such decisions, as she surely would have conceded had Mizelle ruled in the CDC’s favor. If politicians acknowledged the judicial branch’s authority to interpret and apply statutes only when they liked the result, it would be fatal to the rule of law.

The Justice Department is not so bold as to suggest that Mizelle had no business determining whether the mask mandate exceeded the CDC’s statutory powers. But it unsurprisingly disagrees with her conclusion, saying she misconstrued Section 264(a). Here is what that provision says:

The Surgeon General, with the approval of the Secretary [of health and human services], is authorized to make and enforce such regulations as in his judgment are 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 Surgeon General may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as