Textualism Masks Ideological Opposition to the Administrative State


On Monday, U.S. District Judge Kathryn Kimball Mizelle issued a sweeping decision invalidating the federal mask mandate for travelers on planes, trains, buses, and other forms of transportation. Much of the critical commentary in the ensuing days focused on Judge Mizelle herself. Nominated to her current lifetime position by President Trump when she was just 33 years old, Mizelle was rated “not qualified” by the American Bar Association (ABA) but confirmed nonetheless by the then-Republican-controlled Senate. The ABA based its rating on the fact that Trump picked Mizelle to be a trial judge despite the fact that she lacked any real experience as a trial lawyer.

The ABA rating is a distraction. Judge Mizelle’s ruling in the mask mandate case was deeply problematic but not in any way that reflects her lack of qualifications to preside over trials. The decision granted a summary judgment and was thus based entirely on Judge Mizelle’s view of the law. It did not depend on any fact finding but was instead the sort of exercise at which first-rate recent law school graduates excel.

The problem with Judge Mizelle’s ruling was that it reflected the sort of extreme right-wing ideology in which she has been marinating for her admittedly brief career—an ideology that is hostile to government agencies addressing even the most pressing social problems. One could readily imagine Justice Clarence Thomas (for whom Judge Mizelle clerked) or any of a number of other like-minded ideologues in robes producing the opinion invalidating the mask mandate.

The Mandate and the Ruling

Just two weeks after President Biden was inaugurated in 2021, the Centers for Disease Control (CDC) issued an order requiring people “to wear masks over the mouth and nose when traveling on any conveyance (e.g., airplanes, trains, subways, buses, taxis, ride-shares, ferries, ships, trolleys, and cable cars) into or within the United States.” The mandate—which the CDC has periodically renewed—was based on substantial evidence that mask wearing reduces the risk of COVID-19 infection for both wearers and those around them, a risk that is heightened by travel in close proximity to others for prolonged periods of time.

Judge Mizelle cited several reasons for invalidating the mask mandate (which I shall address in a slightly different order than her opinion does). First, she thought that the CDC did not provide an adequate justification for issuing its rule without first going through the usual process of providing official notice and receiving comments from the public. Yet as she acknowledged, the CDC relied on a provision of the Administrative Procedure Act that permits agencies to dispense with the notice-and-comment process “when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.”

Isn’t it obvious what the good cause was here? So one would think. And one need not guess. The CDC order itself states it: “Considering the public health emergency caused by COVID-19, it would be impracticable and contrary to the public’s health, and by extension the public’s interest, to delay the issuance and effective date of” the mask mandate. When the CDC acted, nearly half a million Americans had already died of COVID-19. Roughly another half million have perished of the disease since then.

That wasn’t good enough for Judge Mizelle, who thought the CDC’s “conclusory” statement was at best a justification for the rule, not for adopting it without notice and comment—even though notice and comment would have delayed the rule by at least two weeks and probably substantially longer. During that time, millions of travelers would have been exposed to additional risk, likely resulting in hundreds of additional deaths.

The numbers speak for themselves. In the two weeks after the CDC order went into effect on February 1, 2021, roughly 30,000 Americans died of COVID-19. If the mandate reduced mortality by only one percent, that means that avoiding just a two-week delay saved the lives of over 300 Americans. If preventing those avoidable deaths (not to mention the serious long-term consequences for many people who survive COVID-19 infections) does not amount to good cause, it is difficult to understand what would satisfy Judge Mizelle.

Judge Mizelle also opined that the CDC failed to provide adequate reasons for the mask mandate itself, and thus apparently would have invalidated it regardless of whether it was delayed for notice and comment. Why? Principally because she thought the agency did not explain why it was requiring masks and not other measures, such as social distancing and frequent handwashing—which are of course impossible on an airplane or bus. And of course, Republican ideologues would have challenged any and all such other measures, as they did with respect to vaccine mandates.

Judge Mizelle’s opinion contains some responses to the most obvious objections to its most glaring flaws, but it is difficult to take most of the responses seriously. The most egregious whopper is the judge’s contention that there was no need for urgent action when the CDC adopted its rule because at that time the pandemic had been raging in the United States for nearly a year. Left unspoken was the fact that for nearly all of that time there was a different president whose administration—with the notable exception of vaccine development—was taking a hands-off approach.

Chevron and a Change in Administration

Judge Mizelle’s disingenuous implication that the CDC was the same body under President Trump and President Biden was not merely a bit of judicial trolling. It was also a legal error. To see why, it helps to begin with what has been the most important administrative law case for nearly four decades.

In Chevron U.S.A., Inc. v. NRDC, the Supreme Court affirmed the longstanding approach to the adjudication of cases challenging actions by administrative agencies: when presented with the contention that an agency acted unlawfully, courts should defer to reasonable agency interpretations of ambiguous or vague language in the statutes that empower them to act.

Two main rationales support Chevron deference. The first concerns expertise. Congress delegates rulemaking power to agencies staffed with experts in different domains so that those experts may bring to bear discipline-specific knowledge and data beyond what generalist legislators can master. For example, a key provision of the Clean Air Act includes a default list of pollutants for the Environmental Protection Agency (EPA) to regulate but leaves to the agency the task of determining what levels of emissions to permit through vague terms like “appropriate” and “necessary.” The Act even gives EPA the power to add pollutants to the initial list as science reveals new hazards or to remove some listed substances should they prove benign.

Regulatory agencies’ specialized expertise thus provides the fundamental ground for courts to defer to reasonable agency actions. In using vague or ambiguous language, Congress means expert agencies, not judges, to fill in the details.

Chevron also recognized a second ground for deference: political accountability. The impact of various atmospheric levels of any given pollutant on human health is a scientific question, but how to balance a regulation’s health benefits against its compliance costs is a normative question that calls for a policy judgment.

Chevron involved the provision of the Clean Air Act linked above. The Supreme Court confronted an EPA rule promulgated by the Reagan administration that relaxed emissions standards. The government justified the change by pointing to ambiguity in the statutory term “stationary source.” The Court in Chevron upheld the new rule, saying that the Carter administration’s stricter understanding of that term was reasonable but so was the Reagan administration’s more industry-friendly view. The Court frankly acknowledged a legitimate role for politics: “an agency to which Congress has delegated policymaking responsibilities may, within the limits of that delegation, properly rely upon the incumbent administration’s views of wise policy to inform its judgments.”

Against this backdrop, Judge Mizelle ought to have recognized that the change from the Trump administration to the Biden administration fully explained and went a long way towards justifying the shift in CDC policy. Instead, she wrongly implied that the Trump administration’s failure to adopt a mask mandate somehow showed that there was insufficient reason for the Biden administration to do so.

Undoing Deference

To be sure, not every policy shift can be justified under the law. But the CDC under President Biden has law on its side. To authorize the mask mandate, the CDC relied on a statute that delegates to the agency head the power

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 [agency head] may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary.

In the foregoing passage, I have added italics to emphasize three points. First, the statute expressly includes a category of measures—sanitation—that could be reasonably interpreted to include a mask mandate. Second, even if the mask mandate does not fall within the term “sanitation,” the statute authorizes the CDC to take unspecified other measures. And third, in two separate places the statute reinforces the background approach of Chevron by committing the decision whether and how to regulate to the agency head, and by clear implication, not to the courts.

Judge Mizelle bobbed and weaved her way around the specific statutory guidance as well as Chevron’s background rule. She said that Chevron only requires deference to agencies where the statutory terms are ambiguous. She acknowledged that one meaning of sanitation includes measures “that keep something clean” and that this meaning encompasses a mask mandate. But she compared sanitation to the other measures listed in the statute to conclude that Congress must have intended the term to encompass only its alternative meaning of “to clean something” and masks don’t clean anything. She dispensed with the authorization for “other measures” by arguing that a catch-all must be limited by the terms that precede it, all of which, she said, involve cleaning or removing a hazard rather than maintaining something in its existing state. And from all of this she concluded that, after deploying the standard tools of statutory interpretation, the law is unambiguous, thus providing no basis for deference to the agency.

It would have been more honest for Judge Mizelle simply to state that she thinks Chevron is a dead letter. After all, if the acknowledged ambiguity in “sanitation” and “other measures” can be made to disappear through textualist legerdemain, then so can all statutory ambiguity and vagueness. A determined judge armed with dictionaries and blinded by ideological opposition to regulation will be able to massage just about any statutory term to narrow the domain of agency discretion to the vanishing point.

What is to be done? The Justice Department filed an appeal from Judge Mizelle’s ruling, but its prospects for success are uncertain at best. President Trump appointed a majority of the judges on the Court of Appeals for the Eleventh Circuit, and its chief judge, an appointee of President George W. Bush, is also an extreme conservative for whom Judge Mizelle was previously a law clerk. Meanwhile, the conservative super-majority on the Supreme Court has, in recent years, sought to limit the scope of Chevron deference in various ways—all of which Judge Mizelle’s opinion exploits.

In the end, Judge Mizelle’s invalidation of the CDC mask mandate says as much about the legal conservative movement that produced her as it says about her. She arrogantly pretends that the text of the statute is clear in order to strip a federal agency charged with protecting public health of a vital tool for doing so. The ABA was wrong. In carrying out an ideologically motivated assault on the administrative state, Judge Mizelle proves herself eminently well qualified for the task that Donald Trump and Mitch McConnell selected her to perform.

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