Didn’t the ruling from Judge Kathryn Kimball Mizelle settle the issue of CDC authority? And if the risk here isn’t “immediate” to “public health,” then why did the CDC keep the mask mandate in place at all? Normally Scott Gottlieb is a voice of reason on COVID-19 and countermeasures, but in this clip Gottlieb misses the forest for the trees:

Gottlieb argues that the CDC left itself vulnerable because it didn’t follow the proper rule-making process, but that was only part of why the mandate got overturned. Mizelle did indeed rule that the CDC failed to follow the Administrative Procedure Act (APA), and that failure allowed her to set aside the rule altogether rather than issue an injunction against its enforcement. That alone and on its own dooms the CDC’s case on appeal, even if that was the only issue in Mizelle’s ruling.

But that was only part of the reason Mizelle set aside the rule. The main reason is that the CDC didn’t have the authority under its enabling statute to impose the rule in the first place. Gottlieb’s argument that the Biden administration needs to appeal this to preserve authority sounds as though Gottlieb didn’t bother to read the detailed, 59-page ruling in the first place. The enabling statute grants the CDC authority to “issue regulations” to prevent the spread of communicable diseases, limited to “inspection, fumigation, disinfection, sanitation, pest extermination, and destruction of contaminated animals and materials … and other measures.” As Mizelle noted, the “other measures” had to fit in those same categories, as the Supreme Court ruled when overturning the CDC’s eviction moratoria on the same basis — a lack of statutory authority.

As Mizelle also points out, the only way a mask mandate could fit into these potential regulatory categories would be to consider it “sanitation.” However, sanitation is something practiced on objects, not people. It references activities that either cleanse or preserve the cleanliness of particular objects, especially when read in the context of the statutory language governing the CDC’s regulatory authority. Forcing people to wear masks to access transit systems and faciliu is not “sanitation” under any ordinary definition of the word.

But even if the Biden administration can convince the Supreme Court to accept its virtually unlimited definition of “sanitation” — and that seems unlikely after the big loss on the CDC’s eviction moratoria — it’s not enough. The CDC would still fail on the APA, as Gottlieb admits, which means an appeal is useless. The CDC would have to go back to square one and go through the proper rule-making process to create another mask mandate, which would take months. Why bother with an appeal at all rather than get started on the correct regulatory process?

And in fact, why wait for that when Congress can solve both problems much more quickly?

Congress could impose a federal mask mandate on air and train travel, at least, on the basis of the Interstate Commerce Clause, and predicate it on CDC recommendations in pandemics. That wouldn’t require the CDC to do anything in a regulatory sense. So why doesn’t Congress act? Because it would be tremendously unpopular, for one thing. And for another, Congress loooooves regulation through grants of authority to agencies because it allows them to avoid responsibility.

If Gottlieb wants the CDC to be able to create these mandates, then he should be hitting up Congress to expand their statutory grant of authority or, better yet, deal with the issue directly. Appealing this decision won’t fix the statutory authority issue, it certainly won’t fix the APA defects that Gottlieb acknowledges, and it will be in pursuit of a policy that Gottlieb concedes should have been ended by now anyway. So what’s the point, other than to protect arbitrary and capricious abuses of power at the CDC?

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