Biden administration’s appeal of judge’s mask-mandate smackdown is just a power grab
Passengers cheered, jubilant flight attendants frolicked down aisles collecting cloth coverings in trash bags and America breathed a sigh of relief when Florida-based U.S. District Court Judge Kathryn Kimball Mizelle struck down the Centers for Disease Control and Prevention’s (CDC) mask mandate for air travel.
Meanwhile, Lord and Ruler Anthony Fauci found it “disturbing” that a federal court would overrule a judgment of the CDC. He insisted that the judiciary had no authority to decide a public health matter such as this.
Purportedly based on CDC’s “assessment” that the mandate “remains necessary to protect the public health,” Joe Biden’s Justice Department appealed the order. Did you vote for the CDC or Fauci? Did the CDC suspend the U.S. Constitution and the individual civil liberties it protects?
Press Secretary Jen Psaki made clear why the Biden administration is appealing: “We want to preserve that authority for the CDC to have in the future.” The objective here is, of course, to appeal the 15-day extension but also to preserve the CDC authority over the long term…. we certainly want the CDC to continue to have this authority. . . .”
In other words, the Biden administration and the left want to set up federal bureaucrats as judge, jury and — when it comes to our freedoms — executioner in all areas even peripherally touching on public health.
This is a naked power grab that would bestow enormous power on the unelected and unaccountable in the name of protecting us from an emergency. As Nobel Prize winner Friedrich von Hayek once said, “Emergencies have always been the pretext on which the safeguards of individual liberty have been eroded.”
Mizelle’s ruling isn’t actually about mask policy. It is about the legal scope and limits of the power of the CDC and other federal bureaucracies. Much to the horror of the CDC and the Biden administration, we are a country governed by the rule of law.
Fortunately, Mizelle was having none of it. Her thorough, well-reasoned 59page order tracked the Supreme Court’s unanimous decision last year that the CDC had wrongfully imposed an eviction moratorium “in reliance on a decades-old statute that authorizes it to implement measures like fumigation and pest extermination. It strains credulity to believe that this statute grants the CDC the sweeping authority that it asserts.”
The Supreme Court found the provision in question had “rarely been invoked” and was “generally limited to quarantining infected individuals and prohibiting the sale and transport of animals known to transmit disease.” In a similar vein, Mizelle slapped down the CDC’s stretching of the term “sanitation” as implying a “breathtaking” and improbable grant of power not limited to “modest measures … like masks.” Moreover, the agency’s authority to “quarantine” had never been used in domestic travel or with healthy people.
The judge also rightly faulted the CDC for heavyhandedly skipping the usual notice-and-comment period based on an evidence-free assertion of an emergency — one year into the pandemic. Following the correct process through an appropriate comment period would have exposed the government’s lack of scientific justification, especially when airline CEOs who, unlike this administration, insist hepafilters render masks unnecessary.
Mizelle’s ruling underscores that we need courts, and their requirement of a rational basis for imposing restrictions on liberty, to check the executive branch’s ever-expanding, dictatorial approach to governing.
We’ve learned all too well that denying freedoms harms physical and emotional health, sometimes with tragic consequences. The explosions of suicides and fatal overdoses, foregoing of preventive healthcare measures and declines in life expectancy, as well as delays in children’s educational and social development and destruction of businesses and jobs.
The left’s lockdown, mask-up approach has proven to be a failure compared to Florida’s approach. In a recent study grading states’ COVID response by health outcomes, impact on education and economic performance, Florida landed in the top tier.
Fortunately, federal Judges like Mizelle are reining in presidential power trips. In November, now-unmasked voters will get another taste of freedom — to choose leaders who respect their rights to live, learn, work, travel and breathe free.
Edward J. Pozzuoli is the president of the law firm Tripp Scott, based in Fort Lauderdale.
The repairman was extremely fit and had a distinctive accent. ”Where are you from?” I asked. ”Russia,” he replied. ”That must be tough right now,” I said.
”Everybody hates us,” he said with a shrug.
Later, he took out his phone to share a photo of some Ukrainian neo-Nazis to prove that Americans have it all wrong about Russian President Vladimir Putin, who has said he wants to “denazify” Ukraine. I am aware that Ukraine has its own farright neo-Nazi paramilitary groups. Like our very own homegrown neo-Nazi groups, they may get a lot of attention, but that doesn’t mean the country is teeming with Nazis.
Anyway, I was not up to debating history with someone whose worldview was so jarring to me. Until that moment, I had just assumed that Russians living outside of Russia, with access to factual coverage of the war instead of pro-Putin propaganda, would agree that the war is a misguided and brutal assault on the people and sovereignty of a neighboring state.
Perhaps I was misled by a story last month about two USA Today/Suffolk University polls that found that nearly all of the U.S. residents who identified their heritage as Russian or Ukrainian were united in their opposition to Putin’s war. (The poll included 1,000 people, divided equally between those who said their heritage was Russian and those who identified as Ukrainian.)
Or maybe I forgot about the influence of dictatorfriendly figures like former President Trump, who described Putin’s invasion as “genius,” and Tucker Carlson, who publicly wondered why he should oppose it and has amplified false Russian claims about the United States funding bioweapons labs in Ukraine.
But it does seem that most of the world is on Ukraine’s side and that Russian Americans, far from supporting Putin, are instead worried about being blamed for his aggression.
Ukrainian Americans have worried about being mistaken for Russians. In story after story, we’ve read about businesses victimized by ignoramuses who see the word “Russian” and reflexively strike out, often at fellow American citizens.
In New York City, the owner of the Russian Samovar restaurant told the Insider that she and her employees have been harassed over the phone and online, and she has had to hire security guards. “We were called fascists and Nazis on the phone,” said Vlada Von Shats. She said people have left one-star reviews online, and her business is down 60% since the war began, despite an unambiguous message of support for Ukraine on its homepage.
And Toronto’s Moscow Tea Room has closed its doors for “rebranding.”
I know what it’s like to live in a place where your home country is reviled. During the height of the Vietnam War, my family lived in France. My father, a professor, had received a Fulbright scholarship. We’d originally been meant to spend a year in Amman, Jordan, but the Six-Day War broke out, and the Middle East was off the table. My parents were given a choice: France or Austria. They chose France, and in the fall of 1967, we moved to Pau, a university town in a southwest corner of the country.
My folks were ardently liberal and antiwar, and they often took the four of us kids to anti-war marches. Our year abroad was no different. I remember walking with them in a cold drizzle in a big demonstration against the war. We were taken aback when we realized that, all around us, people were chanting “Yankee, go home!” We didn’t take the insult personally, because we, too, supported getting the United States out of Vietnam.
Whether it’s the misbegotten American involvement in Vietnam, the invasion of Iraq under false pretenses, the failure to intervene in the Rwandan genocide or the botched withdrawal from Afghanistan, it’s my birthright as an American to disagree with my government.
As I handed the repairman a check, he mentioned that he used to work out nearby. ”Oh,” I said, “you must know Arnold Schwarzenegger.”
He scowled. ”I don’t like him anymore,” he said. “He was talking about vaccines and said, ‘Screw your freedom.’ “
Indeed, last August, Schwarzenegger was brusque about resistance to anti-COVID measures. ”There is a virus here; it kills people,” the former governor told CNN’s Bianna Golodryga. “The only way we prevent it is get vaccinated, get masks, do social distancing . . . and not just to think about, ‘Well, my freedom is being kind of disturbed here.’ No, screw your freedom.”
Freedom, said the repairman, “is why we came here.”
Then how, I wanted to ask, can you support taking someone else’s away?
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