CDC issued its initial order on January 29, 2021, pursuant to Biden’s EO. Among other things, it requires almost everyone ages two and up to wear masks in airports and on airplanes, with certain narrow exceptions such as between bites when they are eating.
Various legal challenges have been filed against the mandate. (Full disclosure: The author of this article is also one of the lawyers on one such lawsuit, FRC Action v. Biden, which Breitbart News reporter Katherine Hamilton has covered.) Most recently, almost two dozen states filed a lawsuit raising several statutory and constitutional objections to the Mask Mandate.
Monday’s ruling was on one of the earliest cases, filed in July 2021. The lawsuit alleged that the Mask Mandate violated the Administrative Procedure Act (APA) on three separate grounds: First, that issuing the order is beyond CDC’s statutory authority granted by Congress in 42 U.S.C. § 264a. Second, that the CDC’s action was really a rule (i.e., a regulation) rather than an order, and therefore had to go through a process of public notice and opportunity for public comment before taking effect. And third, that it violates the APA because it is “arbitrary and capricious,” meaning that it was not the result of reasoned decisionmaking.
“The government purports to discover this unheralded power to regulate how individuals appear and behave in public in a long-extant statute—one over seventy years old,” Judge Kathryn Mizelle wrote. “This history suggests that the power the government sees in § 264(a) is a mirage.”
“The only reason the Mandate cites is the public health emergency caused by COVID-19,” Mizelle continued in her 59-page opinion, rejecting the Biden administration’s argument that the Mask Mandate could be imposed by an agency order. Instead, she decided that CDC’s restriction was a regulation that had to go through months of public comments, because “good cause to suspend notice and comment must be supported by more than the bare need for the regulations.”