Appreciate this timely write-up; I'll need to read it once or twice more as my initial parsing was via mobile, but my key concern: can the vile beasts possibly overturn her/the Judge's ruling based on a 'technicality'?
...and further: given that the majority of passengers seem to be in favor of the mask optional ruling (despite flawed polls, observationally most airline passengers are opting NOT to mask on flights), along with airline employees -- not to mention how swiftly Airlines immediately lifted masking policies (in some cases while in flight) -- isn't consensus now on the side of mask optional? Can they possibly and truly attempt to place this cat back in the bag? From a pure political perspective -- and these insipid mask policies were largely political from the onset -- it would seem very foolish to push for the return of forced masking.
If reversed on appeal, the CDC could still revoke the order. Their motivation for appeal, per the press release, is more that they want to ensure they still have the prerogative to order masking. This incredible capacity for capriciousness is why, in an ideal world, the delegation of Congress's authority to the executive in this case would itself be rebuked by the court, as Thapar suggests in footnote 7. Until then, after all, Congress could just pass a new law adding "masking" to the list of things the executive can order, and then that would "fix" the whole thing.
Otherwise, I'm reluctant to predict how it would play out. I assume the airlines at least would back a renewed mask order, maybe Uber and Lyft as well (even though there was never a compelling reason for them to follow the first one, since they are intrastate commerce), but would there be riots on airplanes? It could "get crazy," to use the legal parlance.
Apr 24, 2022·edited Apr 24, 2022Liked by Brian Mowrey
I converted that nasty PDF into a searchable version. These conversions aren't perfect but at least you can search. Often these are created by someone running a document through a scanner that can't do OCR – very annoying.
Great post Brian. It was quite obvious that the CDC was being used as a workaround to skirt typical legislative procedures. The same was happening with using OSHA to enforce vaccine mandates.
This reminds me of an article from Quillette a few years ago in which a lawyer was describing the process used to get takes from lawyers to rebut Trump. It was describing how news outlets would just reach out to whatever lawyer they could just to provide some take so they could post in the media. I'm not surprised that some writer from Vox took this hot take to make this idea partisan.
The media definitely takes a "pay no attention to the federalism behind the curtain" approach to the law, essentially trying to keep the public in the dark RE the fact that when states have different laws, the sky does not actually fall down. If people realized that, then they might realize there's no big need to watch the news all the time to see what is happening in DC or Florida or wherever. Hence why the "Trump judges" are an existential threat.
Yeah I'm honestly shocked how many people are angry that...the legislative bodies are doing what they do. It's hilarious seeing how many people yell about how we are a "democracy" and "why my vote counts!" and I just don't know what to say most of the time. It's funny that some states see what's happening in other states and respond by wanting the federal government to crack down. All of this is not how it works and I wish people at least understood a bit of what's going on before they react. It reminds me of the Kyle Rittenhouse trial it was really obvious who was not aware of what was going on with that and like you said the whole thing going on in Florida right now as well.
Brian, thanks for enabling "monthly" donations. I'm going to set up a monthly donation (and eliminate one of my Patreons. I get more bang for the buck on your substack!) 😜
I couldn't think of a witty way to use it in a sentence.. Maybe something about the energetic pleasure of criticizing and picking apart branch covidian narratives and The Science. 😄
Well, the command-F on THAT one just made for a good laugh.
It's a long-standing issue either with the Substack editor (at list in Safari on my old machine) that spellcheck mark-up goes away after three or four more words. And then there's my over-reliance on Preview for making visuals. Add that to my generally dismal memorization of how words are spelled and it's amazing that anything posts with the letters in the right place!
Excellent analysis. Brian will make an excellent judge someday. It's unlikely either Mizelle or Millhiser believes in the Mystical Orb, but those who do should consider that all decisions involve tradeoffs, and we seldom have clear choices. So all decisions are necessarily compromises, always subject to reconsideration, from our menu choices, to elections, to SCOTUS. It's useful to remember that even the supremes, nine wise and highly educated people considering the exact same facts and the exact same body of "laws," always have a split decision.
The most fundamental error we make is assuming that one more reg or bill or decision will make everything clear. They never do, so we foolishly add one more bill, one more reg, one more adjudication, hoping this time will be different and clarity will prevail. Too many laws, too many regs, too many regulators believing they know what's best for everyone else. A society of competent, self reliant individuals would eliminate the laws and regs and bureaucrats that administer them. But that's not our society. It's the one we should hope for.
Thank you. I prefer to receive my honorary biology degree and Noble Prize before my honorary law degree and appointment to SCOTUS but it's ok if the order is reversed.
Right, and Mizelle's job isn't to consider the Mystical Orb to begin with. If the rule in this case doesn't match the category of rules Congress asked the executive to implement, then it has to go, per another bad law (https://www.law.cornell.edu/uscode/text/5/706). That is the structure of her argument and a competent "wrong take" here is at least plausible (if one agrees that she is wrong). So when Millhiser asserts that the only motivation she could have for narrowing the meaning of "sanitation" is a dislike of the policy, he is committing more disingenuous rhetoric.
It's particularly fruitful if swapped for "democracy" in any given Biden speech. “We’re facing the most significant test of the Mystical Orb since the Civil War. That’s not hyperbole, since the Civil War.” "The Mystical Orb must be defended at all costs. For the Mystical Orb makes all this possible. The Mystical Orb, that’s the soul of America."
Perhaps. But this "is it an emergency or isn't it" problem hardly sank the OSHA mandate during Stranch's review of the stay nor the SCOTUS oral argument. I couldn't really guess how fatal it would be to an appeal here. If I were the government, and maintaining control of the citizenry was more important than winning I mean not having to fake winning the next elections, I would be moving aggressively in either case. But I share your optimism anyway. This seems to be psychologically irreversible, like the slower fadeout of War on Terror airport theatre.
An interesting anxiety. It seems most of the coastal American PMC is psychologically "checked out" of the material world anyway (and has been since the 2020 Great Awokening), and just waiting for some vaguely imagined ascension event, only with an Earthly social credit utopia instead of the actual afterlife. Hence the weird, multi-front, psychological and biological assault on their own children. But that's also not sustainable with daily life and so there's a cognitive dissonance.
Appreciate this timely write-up; I'll need to read it once or twice more as my initial parsing was via mobile, but my key concern: can the vile beasts possibly overturn her/the Judge's ruling based on a 'technicality'?
...and further: given that the majority of passengers seem to be in favor of the mask optional ruling (despite flawed polls, observationally most airline passengers are opting NOT to mask on flights), along with airline employees -- not to mention how swiftly Airlines immediately lifted masking policies (in some cases while in flight) -- isn't consensus now on the side of mask optional? Can they possibly and truly attempt to place this cat back in the bag? From a pure political perspective -- and these insipid mask policies were largely political from the onset -- it would seem very foolish to push for the return of forced masking.
If reversed on appeal, the CDC could still revoke the order. Their motivation for appeal, per the press release, is more that they want to ensure they still have the prerogative to order masking. This incredible capacity for capriciousness is why, in an ideal world, the delegation of Congress's authority to the executive in this case would itself be rebuked by the court, as Thapar suggests in footnote 7. Until then, after all, Congress could just pass a new law adding "masking" to the list of things the executive can order, and then that would "fix" the whole thing.
Otherwise, I'm reluctant to predict how it would play out. I assume the airlines at least would back a renewed mask order, maybe Uber and Lyft as well (even though there was never a compelling reason for them to follow the first one, since they are intrastate commerce), but would there be riots on airplanes? It could "get crazy," to use the legal parlance.
I converted that nasty PDF into a searchable version. These conversions aren't perfect but at least you can search. Often these are created by someone running a document through a scanner that can't do OCR – very annoying.
All of the gif results for "thanks" for this!
You downloaded it? Can I delete the link now?
Roger!
Great post Brian. It was quite obvious that the CDC was being used as a workaround to skirt typical legislative procedures. The same was happening with using OSHA to enforce vaccine mandates.
This reminds me of an article from Quillette a few years ago in which a lawyer was describing the process used to get takes from lawyers to rebut Trump. It was describing how news outlets would just reach out to whatever lawyer they could just to provide some take so they could post in the media. I'm not surprised that some writer from Vox took this hot take to make this idea partisan.
Thank you!
The media definitely takes a "pay no attention to the federalism behind the curtain" approach to the law, essentially trying to keep the public in the dark RE the fact that when states have different laws, the sky does not actually fall down. If people realized that, then they might realize there's no big need to watch the news all the time to see what is happening in DC or Florida or wherever. Hence why the "Trump judges" are an existential threat.
Yeah I'm honestly shocked how many people are angry that...the legislative bodies are doing what they do. It's hilarious seeing how many people yell about how we are a "democracy" and "why my vote counts!" and I just don't know what to say most of the time. It's funny that some states see what's happening in other states and respond by wanting the federal government to crack down. All of this is not how it works and I wish people at least understood a bit of what's going on before they react. It reminds me of the Kyle Rittenhouse trial it was really obvious who was not aware of what was going on with that and like you said the whole thing going on in Florida right now as well.
Excellent and thorough analysis, thank you! 👍🏼
Thanks!
Brian, thanks for enabling "monthly" donations. I'm going to set up a monthly donation (and eliminate one of my Patreons. I get more bang for the buck on your substack!) 😜
Thank you for the support and the feedback RE the donation model!
Makin' a donation just for the diagrams alone. 😉
(p.s., unfortunate typo: cliticizing)
😄 Or fortunate... could be a new legal word with a particular meaning...
Hopefully not one that gets incorporated into any CDC mandates.
I don't know, cliticizing seems like it would be the most fun and healthy thing to come out of the CDC in a long time! 😄
😉 That crossed my mind, too.
I couldn't think of a witty way to use it in a sentence.. Maybe something about the energetic pleasure of criticizing and picking apart branch covidian narratives and The Science. 😄
Thank goodness for momentary lack of creativity! 😀
Well, the command-F on THAT one just made for a good laugh.
It's a long-standing issue either with the Substack editor (at list in Safari on my old machine) that spellcheck mark-up goes away after three or four more words. And then there's my over-reliance on Preview for making visuals. Add that to my generally dismal memorization of how words are spelled and it's amazing that anything posts with the letters in the right place!
Excellent analysis. Brian will make an excellent judge someday. It's unlikely either Mizelle or Millhiser believes in the Mystical Orb, but those who do should consider that all decisions involve tradeoffs, and we seldom have clear choices. So all decisions are necessarily compromises, always subject to reconsideration, from our menu choices, to elections, to SCOTUS. It's useful to remember that even the supremes, nine wise and highly educated people considering the exact same facts and the exact same body of "laws," always have a split decision.
The most fundamental error we make is assuming that one more reg or bill or decision will make everything clear. They never do, so we foolishly add one more bill, one more reg, one more adjudication, hoping this time will be different and clarity will prevail. Too many laws, too many regs, too many regulators believing they know what's best for everyone else. A society of competent, self reliant individuals would eliminate the laws and regs and bureaucrats that administer them. But that's not our society. It's the one we should hope for.
Thank you. I prefer to receive my honorary biology degree and Noble Prize before my honorary law degree and appointment to SCOTUS but it's ok if the order is reversed.
Right, and Mizelle's job isn't to consider the Mystical Orb to begin with. If the rule in this case doesn't match the category of rules Congress asked the executive to implement, then it has to go, per another bad law (https://www.law.cornell.edu/uscode/text/5/706). That is the structure of her argument and a competent "wrong take" here is at least plausible (if one agrees that she is wrong). So when Millhiser asserts that the only motivation she could have for narrowing the meaning of "sanitation" is a dislike of the policy, he is committing more disingenuous rhetoric.
Those expecting rational bureaucracies are often disappointed. Dickens nailed it with "the law is an ass." Mowrey nailed it with "Mystical Orb."
It's particularly fruitful if swapped for "democracy" in any given Biden speech. “We’re facing the most significant test of the Mystical Orb since the Civil War. That’s not hyperbole, since the Civil War.” "The Mystical Orb must be defended at all costs. For the Mystical Orb makes all this possible. The Mystical Orb, that’s the soul of America."
Wow, I need to read through this a few times, very informative, sourced, interesting. Thanks for taking the time and effort.
Thank you!
Perhaps. But this "is it an emergency or isn't it" problem hardly sank the OSHA mandate during Stranch's review of the stay nor the SCOTUS oral argument. I couldn't really guess how fatal it would be to an appeal here. If I were the government, and maintaining control of the citizenry was more important than winning I mean not having to fake winning the next elections, I would be moving aggressively in either case. But I share your optimism anyway. This seems to be psychologically irreversible, like the slower fadeout of War on Terror airport theatre.
An interesting anxiety. It seems most of the coastal American PMC is psychologically "checked out" of the material world anyway (and has been since the 2020 Great Awokening), and just waiting for some vaguely imagined ascension event, only with an Earthly social credit utopia instead of the actual afterlife. Hence the weird, multi-front, psychological and biological assault on their own children. But that's also not sustainable with daily life and so there's a cognitive dissonance.