The group that successfully won an injunction against the U.S. government's mask mandate on airplanes is asking a federal appeals court not to allow the mandate to go back into effect.
The mandate is also arbitrary and capricious, because the CDC "ignored its own data on the known harms of long-term mask-wearing, and failed to heed its own rule for promulgating interstate regulations," the group added.
It urged the appeals court not to grant a motion by the government to overturn a lower court ruling.
While the agency cited the public health emergency over the COVID-19 pandemic, the pandemic had been ongoing for nearly a year and COVID-19 cases were decreasing at the time, undercutting the justification, Mizelle said.
She also found that the mandate exceeded the CDC's statutory authority, dismissing claims that the Public Health Services Act of 1944 gave it the power to regulate travelers.
Government's BriefTwo days after the ruling, the Biden administration officially announced its intention to appeal, based on a fresh CDC determination that a mask mandate on planes and other modes of federally-regulated transportation was necessary to protect public health.
Mizelle erred in her ruling because the public health act authorizes the CDC to require measures that relate to preventing the spread of disease, U.S. Department of Justice lawyers argued.
"That is precisely what the transportation mask order does: masks isolate the disease itself by trapping viral particles exhaled by infected travelers and preventing non-infected travelers from inhaling viral particles," they wrote.
In particular, the government cited how the law gives health officials the authority to enforce regulations linked to "sanitation" in efforts to prevent disease spread.
AnswerIn its answer, appellees said Mizelle properly rejected the government's rationale, which it said was contrived after the order itself was implemented because the order itself does not mention sanitation.
"First, unlike the measures enumerated in the second sentence of § 361(a) the Mask Order does nothing to directly target COVID-19 by 'identifying, isolating, and destroying the disease itself,'" they said. "It applies universally to every healthy individual who enters a transportation hub or sets foot on an airplane, bus, subway, or taxi."
The words that surround "sanitation" make clear that sanitation "refers to active measures towards property," the Health Freedom Defense Fund said, accusing the CDC of attempting to divorce sanitation from its legal context, "giving the word a meaning so broad that it would effectively nullify the entire second sentence of § 361(a)."
The appeals court has yet to decide whether to order an oral briefing. The government asked for one; the health group said it was not taking a position on the matter.
“The Biden Administration is trying to paper over an illegal, sweeping mandate on Americans that is full of massive legal and scientific holes,” Leslie Manookian, the group's president, said in a statement. “That a federal agency should be able to just usurp the power of Congress, and violate fundamental individual rights is not only at odds with the law—it defies basic common sense.”