Judge James Wesley Harris might have only stayed the HHS-directed mask mandate for Head Start in Texas, but the logic of his ruling extends to the entirety of the country. In a ruling last night just under the wire for 2021, the federal court enjoined any enforcement in the state of Texas, ruling in essence that Congress never granted HHS any authority to impose it:
A federal judge in Lubbock halted mask and vaccine mandates in the Head Start program within the State of Texas. The ruling by Judge James “Wesley” Hendrix came Friday (New Year’s Eve). Lubbock ISD and the state sued the Biden Administration in mid-December for a nationwide temporary restraining order and preliminary injunction. The judge, however, limited the order to only Texas.
“The Court concludes that the circumstances do not justify or require a nationwide injunction,” the ruling said. A recent appeals court ruling frowned on nationwide injunctions and lawyers for the federal government brought up that issue both in writing and during a hearing Thursday in court.
“… The great majority of evidence before the Court is limited to harm caused to Head Start programs in Texas,” the judge in Lubbock ruled on Friday.
The school district and the Texas AG argued that imposing the mandate would have irrational outcomes. Students wouldn’t show up for school, programs could face serious staffing shortages, and all for a policy whose rational basis is at least suspect. The children in these programs are largely too young for vaccinations, but they are also not vectors for COVID-19 either.
Judge Harris went beyond just the rational test in issuing the preliminary injunction, however. Harris determined that the mandate — just like the eviction moratoria from the CDC and vaccination mandates from OSHA — has come from an agency that lacks the constitutional authority to impose it. Neither the local Lubbock station nor The Hill report on that part of Harris’ opinion, but Texas governor Greg Abbott made sure to let everyone know about it:
BREAKING: Texas just beat Biden again.
Another of Biden’s vaccine & mask mandates was just halted by a federal judge in Texas.
The Court writes: “It is undisputed that an agency cannot act without Congressional authorization.”
That would apply to all of Biden’s orders. pic.twitter.com/dqmDLGxR9j
— Greg Abbott (@GregAbbott_TX) January 1, 2022
Note the three prongs on which Harris issued the injunction. First, HHS lacks specific authorization from Congress, a point that has repeatedly come up in federal court with Biden’s EOs. Congress could have added this authority to HHS (and CDC and OSHA) by amending the authorizing statutes, but they haven’t — and to my knowledge it’s never actually come up as a proposal. Instead, Nancy Pelosi and Chuck Schumer have contented themselves with punting it to Biden. Why? Probably because such a move would be deeply unpopular, and would be very unlikely to pass in either chamber.
Next up: the Administrative Procedure Act. Every administration runs afoul of the APA in their haste to look muscular, but this is not the first time Biden has botched this step. It’s come up in previous mandate/moratoria cases. In order to impose a rule through agencies, the government has to follow the APA’s requirements for public posting, commentary, and review. Any “rule” that skips past the ADA is destined for the judicial scrapheap, especially since we can clearly say that the pandemic is not an “emergency” in a legal sense as we wrap up its second year.
Finally, Harris points out the “arbitrary and capricious” quality of a rule imposing a somewhat-mitigatory regime on a very low-risk subset of people for this virus. It might make sense to impose a mask mandate on nursing-home personnel, given the much higher risk of severely acute COVID among the elderly, or at least look a lot less arbitrary or capricious — assuming these agencies had the authority in the first place and followed the APA. This third prong would produce the most lively debate in the trial, if this case ever reaches that point. The Supreme Court is about to tackle vaccine mandates and appears ready to extend its line of thinking on the first two defects Harris mentions from their earlier cases involving eviction moratoria from the CDC. That ruling will likely moot Texas v Becerra.
With all that in place, why not issue a nationwide injunction? Harris seems to be a cautious jurist, inclined to limit his rulings to the parameters of the evidence before him. Perhaps we can hope for more judges like Harris in that sense.
Addendum: Abbott took some heat from Twitter users over his opposition to mask mandates, but that misses the point in a couple of ways. Abbott has never opposed voluntary masking, but doesn’t think it should be mandated by public authorities at any level. If students and teachers prefer to show up for Head Start classes with masks, Abbott isn’t stopping them from doing so.
Second, here’s the hospitalization curves for Texas, Florida (also no mask mandates), and New York from the CDC. Make of this what you will, but the one point that should be clear is that mask mandates aren’t having much of an impact.