(CN) — A federal appeals court heard arguments Tuesday in the contentious debate over whether the Centers for Disease Control and Prevention had the authority to issue a mask mandate for public transportation at the height of the Covid-19 pandemic.
The mandate was issued in January 2021, after newly inaugurated President Joe Biden signed an order requiring masks in airports and on planes, trains, ships and intercity buses to help stop the rapid spread of the deadly coronavirus.
That summer, Biden administration officials and the CDC were sued by the Health Freedom Defense Fund, a nonprofit organization founded after the start of the pandemic that "opposes laws and regulations that force individuals to submit to the administration of medical products, procedures, and devices against their will," according to court filings.
The group was joined in the suit by two women who claim the masks aggravate their anxiety and induce panic attacks, which the government does not recognize as grounds for exemption to the mandate.
A federal judge in Florida vacated the CDC order nationwide in April 2022, ruling the agency exceeded its statutory authority and violated the Administrative Procedure Act.
The government appealed, arguing the authority granted to it by the Public Health Service Act of 1944 encompasses sanitation measures such as masks.
Just days after the ruling from the Donald Trump-appointed U.S. District Judge Kathryn Kimball Mizelle, another judge from the same district reached the opposite conclusion in a similar suit. That decision from U.S. District Judge Paul Byron, a Barack Obama appointee, was also appealed, leaving the issue in the hands of the 11th Circuit.
According to Mizelle's order, the CDC bypassed public participation required by the APA's 30-day notice and comment period by improperly invoking the so-called "good cause exception" for the mandate to become effective immediately.
During Tuesday's arguments before the Atlanta-based appeals court, U.S. Circuit Judge Andrew Brasher, a Trump appointee, also said he has trouble with the CDC's argument that delaying the mandate "would be impactable and contrary to the public's health" as a sufficient exemption to the public commentary process.
Mizelle also concluded that the word "sanitation" should mean active measures to clean something or remove filth, as opposed to the CDC;s definition of "the use of sanitary measures to preserve public health" such as masks.
Attorney Brant Hadaway, representing the Health Freedom Defense Fund, argued in support of that conclusion Tuesday, explaining to the three-judge panel that the CDC's interpretation could open the door to mandating vaccinations.
Hadaway further claimed that the Public Health Services Act only grants the CDC the authority to detain and quarantine individuals traveling between states and countries who are "reasonably believed" to be "infected with a communicable disease."
"Quarantine is a much more intrusive restriction to prevent the spread of a communicable disease than a mask though, isn't it?" asked U.S. Circuit Judge Charles Wilson.
The Bill Clinton appointee said "it seems strange" to him that the CDC has the statutory authority to issue a quarantine, but not to mandate masks for travelers "in the context of a global pandemic."
Florida's Solicitor General Henry Whitaker filed an amicus brief in support of the Health Freedom Defense Fund, noting the U.S. Supreme Court struck down an eviction moratorium that was issued by the CDC, in a previous suit from relator associations and rental property managers in Alabama.
"That was different," Wilson said Tuesday. "That had a $50 to $80 million impact on landlords around the United States. There's no economic impact to require someone to wear a $2 mask when they get on a plane, a train or a bus."
While the eviction ban case remains pending in the D.C. Circuit, the Supreme Court found that the Public Health Service Act authorizes the CDC to require measures that “directly relate to preventing the interstate spread of disease by identifying, isolating, and destroying the disease itself.”
The 11th Circuit judges contemplated how an appropriate remedy could be applied in the mask mandate case and whether it should only apply to the plaintiffs in the case.
"It seems like an odd regime," U.S. Circuit Judge Adalberto Jordan said of "a nationwide vacatur making every other ruling procedurally ineffective."
"If 99 other district judges in the country had gone the other way on the very same day that the district judge in this case ruled, what happens to their decisions?" the Obama appointee asked.
The panel judges did not signal when they intend to issue a ruling.
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