Forced masking: the 34-year-old judge versus the 79-year-old president

by philg

In a perfect illustration of the intergenerational conflict exposed by COVID-19 and with perfect timing for Passover (a holiday all about freedom), a 34-year-old federal judge struck down the 79-year-old’s order forcing healthy young (non-elite) people to wear masks on buses, subways, and commercial airliners. On one side, we have Dr. Biden’s husband at an age where COVID-19 is often serious and sometimes fatal. He’s presumably hoping to make it to 100 so that he can attend the Metropolitan Museum’s opening of a permanent wing devoted to the work of Hunter Biden (today: “face coverings required for all visitors age 2 and older; in 2043 maybe it will be “face coverings required except for visitors under age 2”?). On the other side, Judge Kathryn Kimball Mizelle, a 34-year-old with no obvious COVID-19 risks (photo below from a Tampa Bay Bar Association interview) who can rely on her immune system to co-evolve with SARS-CoV-2.

Most young Americans meekly accepted the loss of their liberty (and, in many cases, their education) that was, at least in theory, supposed to help rich old people get richer and older. But not this judge!

As you might expect, the ruling was based on more technical grounds, as explained in “CDC mask mandate for travelers struck down by federal judge” (CNN):

A federal judge in Florida struck down on Monday the Biden administration’s mask mandate for airplanes and other public transport methods.

US District Judge Kathryn Kimball Mizelle said the mandate was unlawful because it exceeded the statutory authority of the US Centers for Disease Control and Prevention and because its implementation violated administrative law.

A Biden administration official familiar with the White House’s decision previously told CNN the goal of the extension was to gather more information and understanding of the BA.2 variant of the coronavirus. Covid-19 cases in the US are on the rise, leading universities and the City of Philadelphia to reimplement indoor mask mandates.

The first part of the judge’s 59-page ruling turned on the meaning of the word “sanitation,” as it functions in the 1944 statute that gives the federal government the authority — in its efforts to combat communicable diseases — to issue regulations concerning “sanitation.”

Mizelle concluded that that the use of the word in the statute was limited to “measures that clean something.”

“Wearing a mask cleans nothing,” she wrote. “At most, it traps virus droplets. But it neither ‘sanitizes’ the person wearing the mask nor ‘sanitizes’ the conveyance.”

Mizelle suggested that the government’s implementation of the mandate — in which non-complying travelers are “forcibly removed from their airplane seats, denied board at the bus steps, and turned away at the train station doors” — was akin to “detention and quarantine,” which are not contemplated in the section of the law in question, she said.

“As a result, the Mask Mandate is best understood not as sanitation, but as an exercise of the CDC’s power to conditionally release individuals to travel despite concerns that they may spread a communicable disease (and to detain or partially quarantine those who refuse),” she wrote. “But the power to conditionally release and detain is ordinarily limited to individuals entering the United States from a foreign country.”

If her order sticks, maybe young people will say “Thank Mizelle” every time they get on public transit (which the rich old people who created the mask orders never used to begin with).

Speaking of Tampa, the children’s museum there in a photo from December 2021:

(One of the things that I am liking about Florida is the priority given to children. Events that would require paid tickets for each child up in Maskachusetts are generally free to children here. At least half of the time that I expect to pay for our kids I find out that a paid adult admission enables an unlimited numbers of kids to come in as well. A family of modest means, therefore, can afford a wide range of activities that would be out of reach for a family in the Northeast. Disney, of course, is an exception and is financially ruinous for anyone with kids.)

Reaction from a Facebook friend (old white guy): “If there was a hell, it would hold a special place for U.S. District Judge Kathryn Kimball Mizelle”

From the NYT readers:

(Kathleen in NY) It’s a shame that not one major airline was brave enough to keep the mask policy in place—offering passengers a choice to fly with other safety-minded people. Missed business opportunity too. It’s a tragedy that airlines caved to the vocal minority, rather than the more compliant majority—placing more importance on individual liberty (aka selfishness) than to the common good.

(Andy in Chicago) Even if masks were about to become optional anyway, this judge’s decision sets a dangerous right-wing precedent for future Covid waves and other epidemics.

(josh in NY): The judge who made this decision was a political appointee of Donald Trump, and utilized no scientific based reasoning in the decision to remove masks from travel. I think this will only harm the nation further and while no one likes to wear them, they are especially useful in tightly packed places like planes, trains, and buses. I hope the administration appeals this blatantly political opinion.

(Jason in NY): I had a trip planned to California next week. As a result of this politically motivated and dangerous move to end masks on flights, I have cancelled my trip.

(Martha in Tennessee) Woo hoo! Now the US needs to drop the negative test requirement for citizens to get back into the country. Those of you who insist on living in fear are just going to have to stay home.

(David in California, replying to Martha) I’ll stay home, thanks for your consideration. And I’m not the only one. Taking action that drives customers away isn’t necessarily a good business decision.

(John in San Jose) I read the decision of Judge Mizelle. It is shockingly bad and is based on narrow views of select words while ignoring not only other sections, but even common sense. … Judge Mizelle claims that the mask mandate exceeds its authority because it does not fit into the suggested list of remedies listed in the law, but she also chose to ignore the closing words of 42 U.S. Code 264 which state “and other measures, as in his judgment may be necessary.” It is sad to realize that the hard work of thousands of well-trained people can be rendered moot by one judge with no knowledge of diseases and a partisan agenda.

Related:

  • COVID-safe restaurant chain idea (perfect for the NYT commenters above who want to continue living under the rules that prevailed in New York City, Washington, D.C., and San Francisco circa January 2022)

26 thoughts on “Forced masking: the 34-year-old judge versus the 79-year-old president”

  1. If the mask mandate is unlawful because it exceeded the statutory authority of the US Centers for Disease Control and Prevention now, then it was unlawful all these years.

  2. Calif* will just create a new local law requiring masks until hell freezes over & the party faithful do believe in hell. The Target shoppers were 100% masked up today.

    The lion kingdom felt like a fossile at age 35 & already was too old to get employed in most of silicon valley. Social media careers are still considered over by age 30.

  4. I read the entire ruling and it was very interesting. Much of the ruling was on the 1946 law that creates and laid out the authorities of the CDC (including the bit about sanitization). One aspect I didn’t appreciate is that the scope of the CDC is explicitly laid out, and very focused on disease control, i.e., eliminating diseases from where they are known to exist. The CDC was not granted much if any authority on general public health issues.

    As we all know, the in 1992 the CDC changed their name to “Centers for Disease Control and Prevention.” But unfortunately for them their governing law did not change at the same time, and it turns out their authority is still pretty limited to disease control, and not arbitrary actions for disease prevention.

  5. From December 21, 2020:

    “Do You Need a Hazmat Suit (à la Naomi Campbell) to Fly?” – New York Magazine, “The Strategist”

    https://nymag.com/strategist/article/naomi-campbell-tyvek-hazmat-suit.html

    When I first saw Naomi Campbell wearing her hazmat suit, I thought it was a stupid publicity stunt being staged by an supermodel to boost her fading career as she ages into her 50s. I never knew how deeply it tapped into the thoughts, feelings and compulsions of the liberal commentariat and elite.

    With the meltdown reactions to this ruling that I’ve seen in the past 24 hours, there can be no doubt: the CDC should have issued Hazmat suit mandates.

    We’re also witnessing a very dangerous thing: the people whose heads are exploding the most violently are the ones who are in positions of influence and power. They have all convinced themselves of Fauci’s Infallability, the unlimited power of the CDC, the subordination of freedom to “public health” and the absolutely zero-knowledge proof that a face rag stop the transmission of an airborne respiratory virus 0.1 micron in diameter. It would be comical except look at the names and positions of the people losing their minds. They’re Influencers. They’re Opinion Shapers.

    They’re going to ruin her career, at the very least, you know that don’t you? She has committed an unforgivable sin – actually two, because she accepted the job in the first place when Trump appointed her. I’d be concerned about my safety if I was her.

    • BTW, the really comical moment in that article comes when you read: “Infectious-disease doctor Peter Katona of the David Geffen School of Medicine at UCLA agrees.” I can just imagine the author, who is especially passionate about “cat furniture,” sitting in her New York apartment, wearing her mask, wondering which expert to call as she writes her article. She brings up her Contact list and thinks: “It has to be someone from LA at the *DAVID GEFFEN SCHOOL OF MEDICINE*” Priceless.

      And you can see why so many people are angry at the ruling! They all fly back and forth from NY to LA!

  6. The antagonism towards mask wearing on this blog is puzzling. The Japanese have been wearing masks to avoid spreading colds forever.

    Covid is clearly spread as aerosols. Masks reduce the spread of Covid.

    I don’t get the animosity, but to each their own, I guess.

    • Fox News and right-wing social media tell them it is so.

      “Dr” Phil was really upset about Dr. Seuss books being “cancelled.” He posted about it for two straight weeks — exactly how long it stayed in the right-wing news. When Fox News stopped talking about it so did “Dr” Phil. Gov. “Deputy God” DeSantis cancelled 40 math textbooks and not a peep from the good “Dr.”

    • G C: Nobody loves everything about Japan more than I do (well, maybe some Japanese people do). And, based on having taken a few trips there I can verify that people wear masks if they feel sick and go out (but mostly they don’t go out because it is incredibly rude to cough or sneeze in public). But you merely assert as true “Masks reduce the spread of Covid”. That makes you a Scientist in the same sense as Dr. Fauci is a Scientist. Congratulations! But have you proven your hypothesis under the rules of science v.2019 (when “science” was still lowercase and people didn’t follow it)?

      https://www.worldlifeexpectancy.com/cause-of-death/influenza-pneumonia/by-country/ shows that Japan had, in 2018, 2.5X the flu/pneumonia death rate compared to the U.S. That’s not a great advertisement for masks, is it?

      https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4046809 (study of 600,000 children in Spain) found “[mask] mandates in schools were not associated with lower SARS-CoV-2 incidence or transmission, suggesting that this intervention was not effective” after comparing unmasked 5-year-olds to masked 6-year-olds.

      https://www.ajicjournal.org/article/S0196-6553(08)00909-7/fulltext is a 2009 article titled “Use of surgical face masks to reduce the incidence of the common cold among health care workers in Japan: A randomized controlled trial”. Excerpts: “Thirty-two health care workers completed the study, resulting in 2464 subject days. There were 2 colds during this time period, 1 in each group. Of the 8 symptoms recorded daily, subjects in the mask group were significantly more likely to experience headache during the study period (P < .05). Subjects living with children were more likely to have high cold severity scores over the course of the study. Face mask use in health care workers has not been demonstrated to provide benefit in terms of cold symptoms or getting colds." If we model belief in masks as a religious belief, of course it isn't necessary to look at these kinds of numbers. We can take it on faith that they work (or used to work, until Judge Mizelle ruined everything).

    • Mike: I was delighted when the Dr. Seuss books were banned from Amazon and eBay and pulled off the market by the publisher, not “upset”! That is the kind of story that would be impossible to invent. (As for Florida choosing some K-12 textbooks rather than others, it is tough to say anything interesting without seeing excerpts from the chosen versus the rejected ones. California solves this problem by, apparently, not teaching math at all! See https://www.nytimes.com/2015/10/27/upshot/surprise-florida-and-texas-excel-in-math-and-reading-scores.html for how California is last among the nation’s big states.)

    • And that is what perplexes me most about your hard right-hand turn of the last few years. If you are looking for outrageous things to write about, you couldn’t possibly do better than the entire Republican Party right now.

      Giving speeches at white supremacist conferences? Check. Marrying a 16 year old girl while in your fifties? That you have groomed for two years? Check. Berating a kid for (voluntarily) wearing a mask in a FL school, while not knowing his personal situation? Check.

      Lying on your security clearance application about foreign contacts; having your father-in-law grant you a Top Secret clearance anyway (against advice of Intel Community professionals); having a Saudi prince declare he has you in his pocket; getting a $2B personal loan from another Middle Eastern government; making $0.5B a year as a “side-gig” while you are supposed to be the government’s lead on climate change, middle east peace, covid response, infrastructure, etc.; then getting a $2B investment into your new hedge fund by the same Saudi prince (against the wishes of his co-investors)? Check.

      You are playing in the minor leagues since you limit outrageous stories to the left.

    • Mike: I guess we don’t share a sense of humor. I think it is funny that people feel the need to obtain protection from Dr. Seuss. I don’t think it is funny that someone gave a speech at a conference, regardless of the topic of the conference.

    • Mike, perplexed is not perplexed about that stuff that you are mentioning. Philip covers some of the important staff that affects our and our descendants future (maybe with exception of Dr. Zeuss). Stuff that you are mentioning belongs either in a freak story of tabloid section or in annals of fruitless and sometimes dangerous bureaucracy. Democrats dwarf Republicans in the stuff you are mentioning and Philip does not write about them either.

    • Mike: I considered myself a European classic left liberal/libertarian until the elites that pose as leftists (both in the U.S. and Europe) got so greedy, ridiculous and authoritarian that I can no longer support them.

      Fox News is basically forbidden for European academics, but I discovered it on YouTube since 2020. It was the only large American network that reported accurately on the Canadian trucker protests. Fox News is the only network that still mentions working class issues. The champagne socialists on the other hand hate workers.

      Other networks like CNN have turned into propaganda networks in their TV presence, though I find CNN’s web presence somewhat more balanced.

      Perhaps the people that you think have turned “hard right” are doing the same things they have always done?

    • I will believe and convert to a liberal IFF when they force the same agenda and mandates on much more crushing and urgent issues, one of which the crumbling public education in this country.

      Can our policy makers lock teachers and students (and even parents) at school to flatten-the-curve so students actually graduate with real reading and math skills? Can our policy makers lock welfare recipient at a job site to flatten-the-curve so that they are moved off welfare?

    • Anon: It is definitely true that an American who currently holds 1970s left-liberal views is considered “hard right” today. For example, a person who believes that skin color shouldn’t be considered in employment, friendship, business, etc. was left-liberal in the 1970s yet today is a right-wing white supremacist. A person who believes that men and women (as those terms were understood in the 1970s) should be treated equally for employment, in family court, etc. was left-liberal in the 1970s and is a hater today.

  7. I just flipped on the news to see that a US Senator today said that Disney, because they opposed the “Don’t Say Gay” bill, will now have Mickey and Pluto f*cking in every episode, and parents can no longer feel safe turning on the Disney channel because it is now equivalent to Cinemax.

    What’s more outrageous?

    “Dr” Phil: “But….masks!”

  8. The mask thing is the biggest govt fuck-up in years. It all started with the “no mask” recommendation that was a lie because the real concern was not enough masks on hand for medical people. Instead of explaining this, they just lied. Then kept on lying to cover that lie. Once trust is gone, game over.
    In case anybody cares, I have been uncertain on the effectiveness of proper masks. I’m now convinced they don’t help, Thanks, I guess.

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