Legal Trainwreck(!)

My clearly important and not four-days-late thoughts on the Mizelle mask mandate opinion.

In celebration of Judge Mizelle’s vacatur of the CDC Mask Mandate, a bit of legal criticism. How was the CDC’s mandate legal in the first place? Does the legal definition of “sanitation” include masks or not? And should we be worried about the flaws in the opinion that set it aside?

A follow-up post may address the issue of whether scientific terms can ever truly have legal meaning, whether antiquated or not.

Monday Was a Good Day

I’m not a doctor or a lawyer, but I play both at Unglossed.

Ian Millhiser is a lawyer, one possessed of a fundamental enmity toward the entirety of Madisonian guardrails designed into our Federal government. Or at least, he certainly supports dismantling whatever of those guardrails are left. “Perhaps” he is motivated by compassion; he simply wants to put the Constitution out of its misery.

Here is how Ian “Blames Madison” Millhiser characterizes the opinion delivered by 35 year-old District Judge Kathryn Kimball Mizelle:¹

Mizelle’s opinion in Health Freedom Defense Fund v. Biden, the case striking down the masking requirement, is so poorly reasoned that it is difficult not to suspect that it was written in bad faith. Its primary argument is that federal law permits the Centers for Disease Control and Prevention to require businesses to clean up contaminants that can spread disease, but that the law does not permit the CDC to actually prevent such contamination from occurring in the first place. But, to arrive at this interpretation of the law, Mizelle takes extreme liberties with statutory text.

I do not believe that Judge Mizelle is as incompetent as her opinion suggests. [...] By all accounts, Mizelle is a smart early-career attorney who could be a very effective advocate.

The most likely reading of her opinion, in other words, is that she simply disagreed with the Biden administration’s masking policy, and concocted a justification for striking it down. That approach should trouble anyone who cares about democracy, regardless of what they think about mandatory masking on airplanes.

In this selective quoting, things are going along fine until the last sentence, when Millhiser veers into sober but apocalyptic fearmongering about the Mystical Orb. I mean “democracy.” I don’t know why I said “Mystical Orb”! Millhiser obviously was talking about democracy, and not a Mystical Orb. The problem with Mizelle’s setting aside of the CDC’s mask order is that she disagreed with the Biden administration’s policy, and Biden was elected, and so if you care about the Mystical Orb, you should be very worried that a judge concocted a justification for setting aside a rule imposed on all American travelers by a Federal agency that is carrying out the will of the man who was chosen by the Mystical Orb. I mean democracy! “Democracy!” You should want the Elected Man’s agencies to be able to do whatever they want because you care™ about Democracy. (Perhaps today is a good day to abolish the judiciary?)

Stunning Legal Analysis

Whether I am pretending to be a biologist or a legal scholar, my goal with this journal is the same: To report on a complex subject without insinuating my preferred rhetorical aims into said report. Just the facts, in other words. Unless humor demands otherwise.

What is so astonishing about our modern media is that the Narrative is crafted, round the clock, by experts whose job it is to know what they are talking about at all times, and yet never describe it coherently. Instead, their asymmetrical familiarity with any given “it” is leveraged for the purpose of persuading those without an understanding of the “it” to believe that theirs is the only right-thinking attitude toward the “it.” This happens both within The Narrative and The Anti-Narrative. Unglossed seeks to simply provide the reader with a clear view of the it; even if I am at all times at risk of describing some details incorrectly.

So, here is the structure of legal standards which underlay the CDC’s presumed authority to casually declare that “Persons must wear masks over the mouth and nose when traveling on conveyances into and within the United States,” diagrammed by your humble make-believe-legal-scholar:

Article I, Section 8 of the Constitution authorizes Congress to “regulate Commerce with foreign Nations, and among the several States.” Proper judicial interpretation and construction of that power, it turns out, requires determining three separate under-determined terms: “Regulate,” “commerce,” and “among the States.” Achieving this trio of tasks could fill a textbook, but suffice it to say that navigation was conclusively (if erroneously) incorporated into the understood meaning of “commerce” in 1824.

So, Congress can “regulate” navigation (travel aboard hired vessels) “among the States,” because Article I says so. That’s what Article I is: The Constitution’s Wikipedia page for Congress.

But the Mask Mandate wasn’t authored or issued by Congress. It was authored and issued by the CDC. If the Constitution finds it necessary to give Congress the power to “regulate,” then that power is not assumed to be intrinsic to the status of merely “being a branch of the government.” And if the Constitution means for the executive branch to have the same power, it would therefor explicitly mention this feature. It does not. So why does a nominally executive-branch Federal agency have the authority to “regulate” anything?

If you, being an American reader who didn’t time-travel here directly from the 18th Century, answered, “Because… that’s just the way things are?” congratulations. You are correct. Absent Congressional self-restraint and active resistance from the judiciary, there is nothing to prevent Congress from delegating its granted powers to the other, less accountable branches. (Here it should be mentioned that the President is not elected by “the people,” but by voting machines. I mean states! States. I definitely meant states.) Both Congressional restraint and judicial resistance have been absent since the mid-20th Century, and so nearly every power of regulation has in some matter been delegated to the executive since then, with notable exceptions. The 1944 Public Health Services Act is merely a very early example of this uncontested, mission-creep-process of delegation.

This act inserted clauses into Title 42 which permit the executive (here, “any agency” can be swapped for “the Surgeon General,” thanks to a later legal construction) to issue new regulations for interstate commerce on a whim, provided said regulations meet the following remit:²

The Surgeon General, with the approval of the Secretary, is authorized 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 Surgeon General 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.

The CDC cited this law in their super-legitimate Mask Mandate declaration;³ counsel representing the government further argued that requiring passengers to wear masks so they can’t germ each other up is granted by “may provide for… sanitation.”⁴ So in so far as the CDC has been delegated the power to regulate interstate commerce (navigation) with regards to euthanizing yourself and being packed in a dry ice box - er, I mean, putting a cloth over your mouth and nose unless eating, duh! Science! - it is because Congress said they may provide for sanitation.

Lastly, on this tree, the CDC’s order was asserted to apply to hired conveyance within states as well. A rationale for this assertion has yet to be furnished by the government in court, but if we assume that such a rationale would follow the trend of all other intrastate 20th-Century-onward Federal intrusions premised on “interstate commerce,” it would be the “substantially affects” test.

And so, we can at length depict the following substructure to explain how the Interstate Commerce clause licenses the CDC to issue a Mask Mandate. Note that some items depicted as a “reach” of the mandate refer to the sector of government that might be granted the power to issue said mandate:

Don’t Sanitaze Me, Bro

The easiest facet of the Mask Mandate to set aside is the final scope-expansion, into intrastate commerce. Although no apparent rationale was offered, what strikes as the most likely argument the government would make to defend regulating intrastate and intracity private and public transit is a “substantially affects” extension to interstate commerce.⁵

But here, the government would have trouble explaining to the court why only a transportation-related aspect of intrastate commerce was deemed to substantially affect interstate commerce via spread of a communicable disease. Why is riding an Uber more impactful of interstate disease spread than, say, operating a bike shop? And yet the CDC’s mask mandate only asserts authority over “conveyance.” Because of this design, it is clear that the mandate is intruding only into matters of intrastate gainful activity that resemble interstate (navigation and) commerce, not those which substantially affect it.

But attacking the final scope-expansion of the CDC order would leave untouched the CDC’s Mask Mandate as regards interstate transit on airplanes, or any other hired vessel.

Since we know Judge Mizelle received a challenge to the Mandate as applies to airplanes, and overturned said Mandate, we know that her attack on the construction that grants authority to the CDC was higher on the chain.

She could have attempted to upturn Marshalls’ now-almost-two-hundred-years-old incorporation of “navigation” into “commerce,” thus refuting the Federal government’s authority on the former matter.⁶

Next down, she could have attempted to erode the delegation of power to the executive effected by the 1944 Public Health Services Act to begin with, as another “Trump judge,” recently reviewing the act, has eloquently argued it is past-time for the judiciary to get to work doing.⁷

Instead, Mizelle attacked the contiguous link between the 1944 law’s written meaning - “sanitation” - and the current application - “masks.” The result was the most precise attack of the CDC’s authority over interstate commerce that would still encompass interstate commerce: i.e., the CDC can only regulate interstate commerce in accordance to a 1944-vintage understanding of the grant of example regulations:

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

As a (presumed) originalist, Mizelle would be aware that a “surplusage attack” is the best way to turn an enumeration - or grant - of regulatory powers into a proscribed boundary of said powers, so it makes sense that she would organize her strategy around this list.

To work backward, Millhiser, criticizing Mizelle, over-confidently crows:

[Mizelle’s opinion’s] primary argument is that federal law permits the Centers for Disease Control and Prevention to require businesses to clean up contaminants that can spread disease, but that the law does not permit the CDC to actually prevent such contamination from occurring in the first place.

How could anyone take such a bone-headed view of the meaning of “(provide for) sanitation”?

Well, by parsing the rest of the sentence which contains “sanitation.” If “sanitation” was intended, in 1944, to simply mean “prevent […] contamination [from contaminates] from occurring in the first place,” there would have been no need to grant the Surgeon explicit purview over everything else in the sentence, i.e. providing for “fumigation, disinfection, […] pest extermination, destruction of animals or articles.” Since all of these “prevent contamination,” they, per Millhiser, must be implied as Congress’s intended meaning of “sanitation” - “to prevent contamination” - unless the supplement of “sanitation” with these other examples is taken as something other than surplusage. It thus makes sense to infer an intended meaning to each and every of these discrete items that does not in any case blanket “prevention of contamination.”

After all, “prevention of contamination” is the entire goal of Congress’s delegation of interstate commerce regulation to the executive in this realm. So if “sanitation” meant, in 1944, “anything that prevents,” no enumeration of powers, nor explicit re-authorization, of “sanitation,” would have been necessary. It would have been sufficient, adequate, to say the Surgeon General may “prevent contamination.”

But that is not what the 1944 Act says. Rather than issue the executive a blank writ against “prevent contamination,” it says the executive may order certain interventions, including “sanitation.” Sanitation therefor cannot mean “prevent contamination by any means.” It therefor cannot mean “prevent contamination of air,” by obstruction of human respiration into said air. The US Congress of 1944 knew what air was, and would have mentioned said element in their list of interventions in the category of “prevent contamination” if they saw fit. The point of the list is to describe how the executive branch may prevent contamination, and obstructing respiration is not on it.

To an originalist, n+1 items within a list demonstrate that “n” is not meant to be extended to the category of listed items at large. So, it makes sense that Mizelle structured her opinion on a surplusage attack.

Still, things didn’t go smoothly in the execution.

For one thing, “sanitation” tuns out to be defined in contemporary dictionaries as encompassing prevention of contamination, via “keeping clean,” or “preserving health.”

As Millhiser summarizes:

And, as Mizelle admits in her opinion, dictionary definitions of the word “sanitation” include “measures that keep something clean.” She even quotes dictionaries that provide definitions such as “the use of sanitary measures to preserve health.”

Nevertheless, Mizelle refuses to give the word “sanitation” its ordinary meaning, instead claiming that this word’s meaning must be limited “to measures that clean something, not ones that keep something clean.”

Mizelle, laudably, preempts criticism on this front by getting into the usage metrics. Citing a search of corpus linguistics, she asserts that only 5% of the contemporary usage of “sanitation” referred to prevention of contamination, rather than remedy of same. However, this math requires a fairly disingenuous interpretation of what is accomplished by “sewage.”⁸

Courts “avoid ascribing to one word a meaning so broad that it is inconsistent with its accompanying words.” Gustafson v. Alloyd Co,. 513 U.S. 561, 575 (1995). Thus, though “sanitation” could be defined as maintaining something in a status of good hygiene and preventing disease—as the government’s definition’s show—the context here suggests that is not the case. It indicates that “sanitation” means changing, not preserving, the status of an object or area by cleaning.

Customary usage at the time agrees. One method to assess the ordinary meaning of a term is to search a database of naturally occurring language. A search returns the desired word as well as its context and, with sufficient sample size, search results permit inferences on how a word was used. This method is known as corpus linguistics. The Court here searched the Corpus of Historical American English (COHA) to find uses of “sanitation” between 1930 and 1944. Of the 507 results, the most frequent usage of sanitation fit the primary sense described above: a positive act to make a thing or place clean. Common examples referred to sanitation in the context of garbage disposal, sewage and plumbing, or direct cleaning of a dirty or contaminated object. In contrast, by far the lease common usage—hovering around 5% of the data set—was of sanitation as a measure to maintain a status of cleanliness, or as a barrier to keep something clean.

Nonetheless, it’s not hard to see why her opinion was so easy to attack on this front. Mizelle walked herself into a trap by assuming that the 1944 law must, in the end, be coherent according to a 1944 definition of the terms within it.

Well, no. It turns out to just be a bad law, which grants executive agencies essentially unlimited powers over interstate commerce. Mizelle’s attack would be more durable if no recourse to contemporary dictionary definitions or common usages of “sanitation” were employed. Instead, it is enough to point out that if “sanitation” means “prevent contamination,” then it means everything else in the statute, leading to a surplusage conflict.

And yet, Mizelle doubles down from there, into a weird and flimsy assertion that clauses b and onward of 42 U.S. Code § 264 define the scope of a by contrast. In fact, they define the scope of a by clarification. A is talking about property and liberties, but cannot apply to liberties unless the conditions in b in onward are met. Therefore, b and onward are meant to constrict what would otherwise be an unlimited application of a to liberties, not to excise a from said application to begin with.

Again, it seems like Mizelle crafted her strategy in advance of yelling “fire!” By doing so, she leaves her opinion vulnerable to the type of technical attack levied by Millhiser.

The Breaks

Millhiser, in his “explainer”⁹ of the flaws of the Mizelle ruling, further defends his view that “caring” about “democracy” demands being “troubled” by this instance of alleged anti-majoritarian judicial activism with the following thorough, elegant political-philosophy argument:

In 2020, the American people elected Joe Biden president. That means that Democrats will have an outsized say in determining America’s public health policy for the duration of Biden’s tenure in office. If the voters decide that Biden handled this responsibility poorly, then they will have the opportunity to swap in a different president in 2024.

The appointment of Mizelle — and other, similarly ideological judges — by Trump was intended to short-circuit this democratic process. Trump gave dozens of Federalist Society stalwarts the power to block literally any federal policy. And, especially in the public health context, Trump’s judges are using this power quite aggressively.

To dismantle the circular reasoning contained in this argument, we only need to correct the phrase “that means”:¹⁰

In 2020, the American people elected Joe Biden president. [If anti-majoritarian checks and balances had not been put in place during the creation of the government, that would mean] that Democrats will have an outsized say in determining America’s public health policy for the duration of Biden’s tenure in office.

It may be true that the “lame-duck” Republican administration’s norm-bending fulfillment of a basic administrative responsibility constituted an attempt to proscribe the ability of the incoming administration to enforce its will on the American people on a whim for four years straight; but in so doing, they were realizing the design of our (non-democratic) system of government.

Millhiser accuses Mizelle of being too intelligent to believe her own argument; in other words, the flaws in her argument are too easy for anyone with a basic grasp of the law at hand to see through. I’d wager, here, that it takes one to know one. A competent understanding of American law and an axiomatic premise that “antidemocracy = bad” are fairly incompatible modes of thought; if the majority’s will were literal law, after all, we wouldn’t need a judiciary; cases of law would be held in open forum, as in Ancient Athens. The framers were aware of the place. Millhiser is no doubt aware that, due to the framers’ awareness of the place, we are not in the place. And yet he is addressing the public as if what the public should expect to be the case is that we are in Ancient Athens. You should be troubled! Don’t you care about America’s precious democracy?!

What the?! THAT’S weird…

And so while Mizelle is (allegedly) legislating from the bench, tut-tut-tut, Millhiser’s apparent aim for “appearing less competent than he is” is to deceive and bedazzle his lay reader, so that they are left confused and angered. After all, the confusion and anger of lay readers is what feeds the Mystical Orb its power.

But this hypocrisy does not make or break Millhiser’s criticism of Mizelle’s opinion; it only decorates it; adorns it with inappropriately existential moral stakes. The core of his criticism is a bit stretched in parts, but it is in no measure ridiculous.

No, Mizelle’s opinion is not great. It does seem like she probably could have issued better, particularly with the “property/liberty” distinction. But what you should think about the decision is not determined “regardless of what [you] think about mandatory masking on airplanes.”

If you think mandatory masking on airplanes is great, you should be upset. If the opposite, you should be overjoyed. Because Mizelle’s opinion set aside the mandate. It’s OK to just “like” or “not like” what the government does in America, without having to resort in every single case to rousing the mob to convict the offending actors within said government of impiety against the Mystical Orb. Shut up, Millhiser. You are literally a lawyer. The well-accepted scum of humanity.

“Blames Madison” Millhiser didn’t get what he wanted, which was for all American travelers to continue to be forced to engage in a useless and humiliating act of physical discomfort for billions of collective hours to make the mob happy, because of a bad law from 1944. Who did get what they want? Anyone who prefers “not forcing all American travelers to continue to engage in a useless and humiliating act of physical discomfort for billions of collective hours to make the mob happy, because of a bad law from 1944,” to “democracy.” Them’s the breaks.

Some real stunning legal analysis, I know.

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1. Millhiser, Ian. “The Trump judge’s opinion striking down the airplane mask mandate is a legal disaster.” (2022, April 19.) Vox.

which reviews:

Health Freedom Defense Fund vs Biden, opinion: https://www.documentcloud.org/documents/21637266-health-freedom-defense-fund-inc-v-biden (This is a horrible, possibly demonic pdf that won’t allow word-search for some reason; I will replace this link as soon as I find a better copy)

2. “42 U.S. Code § 264 - Regulations to control communicable diseases.” cornell.edu.

3. See https://www.cdc.gov/quarantine/pdf/Mask-Order-CDC_GMTF_01-29-21-p.pdf and https://www.cdc.gov/quarantine/masks/mask-travel-guidance.html

Correction notice: The original version of this post described the CDC as having “hyperlinked” to 42 U.S. Code § 264 in their Order declaration (as in, in the pdf). This was a mistaken memory on my part. The Order merely cites the law (as well as the less relevant portions of 42 CFR). Additionally, my citation of the Order was misplaced at first due to a somewhat violent reorganization of the main text during composition.

4. (Health Freedom Defense Fund vs Biden.)

5. See United States v. Lopez (93-1260), 514 U.S. 549 (1995). Thomas, Concurring.

for a perspective on the general work that would have to go into cleaning up the government’s use of the substantially affects test. Also see footnote 6.

6. See Barnett, Randy. “The Original Meaning of the Commerce Clause.” 68 U. Chi. L. Rev. 101-147 (2001)

Circa Page 125 for brief discussion of “navigation” incorporation. The essay is also a stellar overview of the role of meaning-interpretation in law in general, the difference between investigating common usage and author intent, etc.

7. See “Tiger Lily, LLC, et al. v. HUD, et al.” (pdf) Thapar, Concurring.

Of the three branches, Congress is the most responsive to the will of the people. And the Founders designed it that way for a reason: Congress wields the formidable power of “prescrib[ing] the rules by which the duties and rights of every citizen are to be regulated.” The Federalist No. 78, at 465 (Alexander Hamilton) (Clinton Rossiter ed., 1961). If legislators misused this power, the people could respond, and respond swiftly.

So, naturally, Congress has an incentive to insulate itself from the consequences of hard choices. That was clear from the start. Consider one prominent example. The Constitution empowers Congress “[t]o establish Post Offices and post Roads.” U.S. Const. art. I, § 8, cl. 7. For 18th-century Americans, this was high-stakes stuff. […]

8. (Health Freedom Defense Fund vs Biden.)

Scoring references to sewage and plumbing as being uses “of sanitation as a measure to maintain a status of cleanliness, or as a barrier to keep something clean” would obviously increase the percentage of such usage beyond 5%.

However, the abundant importance of bathrooms and plumbing in interstate mass transit aside, it is still not really contextually coherent to fit “sewage and plumbing” into the list of example measures in 42 U.S. Code § 264. Rescuing the law from itself essentially requires “fixing” the definition of “sanitation” to only refer to actions taken upon things, as Mizelle endeavors to do. This makes the person attempting to fix the mess look like the one who is dirty, unless they are very careful with their construction.

Again, it seems that this was merely a “bad law,” in that the scope of intrusion delegated to the executive was breathtaking according to common-usage definitions at the time. Note that the appending of “and other measures” at the end of the list of measures, which effectively renders the list not an enumeration, must essentially be ignored during judicial review in order to allow the law to stand at all.

9. Officially deemed an “explainer” by the author himself (twitter). “Legal Trainwreck” (as opposed to “disaster”) is supplied by the same tweet.

10. More substitutions are available:

In 2020, the American people [no, the American States] elected Joe Biden president. [If anti-majoritarian checks and balances had not been put in place during the creation of the government, that would mean] that Democrats will have an outsized say in determining [a fictional power which does not in one iota belong to the Federal government, called “public health policy”] for the duration of Biden’s tenure in office [even the part after he is a “lame-duck,” like Trump was when appointing Mizelle below?]. If the voters decide [are convinced by the media, including myself] that Biden handled this [not-a-] responsibility poorly, then they will have the opportunity to [be instructed by the media to] swap in a different president in 2024.

The appointment of Mizelle — and other, similarly [disagreeing-with-my-]ideolog[y-]ical judges — by Trump [Orange Man! Drink Bleach!] was intended to short-circuit this democratic process [exactly as per the spirit of the creation of the judiciary]. Trump gave dozens of Federalist Society stalwarts the power to block literally any federal policy [that can’t surpass the intentionally anti-majoritarian guardrails built directly into the legislative process, BOO HOO!]. And, especially in the public health context [where due process is not guaranteed, and so the majority has no textual limitation on its power to commodify the individual aside from generic Madisonian checks and balances], Trump’s judges are using this power quite aggressively.