I read the mask mandate court decision so you don't have to

This is why "conservatives" have wanted to control the judiciary

I had to take two ibuprofen followed quickly by two naproxen sodium for the headache that set in only three pages into the decision by the federal court judge striking down the CDC’s public transportation mask mandate, and still there is a spot between and just above my eyes that feels like somebody drove a nail into it. 

Here's the problem, if you want to boil a 59-page decision full of them into just one:  The Judge, a Trump appointee only eight years out of law school named Kathryn Kimball Mizelle, is myopic.  Presented with a case involving a regulation written by the Center for Disease Control and Prevention, the judge manages to spell out the full name of the federal agency in the suit only once, in the first paragraph of the decision, and then she proceeds to treat the case like she’s dealing with the department of sanitation.

It's as if the words “disease,” “control,” and “prevention” cease to exist.  She proceeds to refer repeatedly to the CDC completely shorn of the meaning of its formal title.  After acknowledging that “a virus colloquially known as COVID-19 began spreading through the world,” and “the Secretary of Health and Human Services declared COVID-19 a public health emergency,” she treats the existence of this disease that is on its way to killing one million Americans like it’s a nuisance getting in the way of the opportunity given her to slap down one of those awful regulations she heard so much about while attending fund-raisers for the Federalist Society.

The authority for requiring travelers to wear masks on airplanes, buses, trains and other forms of public conveyance including Ubers and cabs rests on the Public Health Services Act of 1944 which authorizes the CDC to “prevent the introduction, transmission, or spread of communicable diseases.”  To enforce its regulations, the CDC “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…may be necessary.”

Those are the words of the law, and they are the words the judge then spends the next 50 pages of the decision attacking as if their purpose could be and should be entirely ignored.  The purpose of the law, of course, is to prevent the spread of “communicable diseases,” of which COVID-19 is undeniably one.  But forget the purpose of the law.  Forget the legal, moral, and medical necessity to protect human beings from becoming infected with the virus.  What’s important to this federal judge who once clerked for Justice Clarence Thomas on the Supreme Court is finding a way to slap down this terrible federal regulation which she naturally gets around to finding, at one point in the decision, interferes with the authority of states to regulate the spread of disease within their own borders.

A "border” is an imaginary line on the ground.  Unless you saw those big signs along the interstate announcing “Welcome to New Jersey” or whatever state you’re about to enter, you wouldn’t know you had crossed a state border anywhere in this country.  It’s as if having a disease in Mississippi, say, is entirely discrete from having a disease in Alabama or Louisiana, both states bordering on the Magnolia State.

The word which takes up about 20 pages of the decision is “sanitation,” found in the statute authorizing the CDC to prevent the spread of disease.  It’s not good enough, according to Judge Mizelle, because “Sanitation is Limited to Cleaning Measures,” as she titles an entire five page section of her decision, before she insures she’s made her point by titling the next five-page section, “Sanitation is Limited to Property,” because, see, the CDC can’t require people to wear masks because (1) masks don’t “clean” anything, and (2) the people the law requires to wear them aren’t “property.”

Are you with me, so far?  Good, because it gets worse.  The CDC can’t make people wear masks because all the Public Health Services Act of 1944 did was authorize cleaning stuff and exterminating pests and destroying animals. 

Ooops…the act also authorized the CDC to take “other measures” to prevent the spread of disease, but according to this legal genius, wearing masks is not within the authority of the CDC to mandate because – get this – the words “other measures” do not immediately follow the word “sanitation.”  Got that?  It would be okay to require masks if the words in the statute had been arranged differently.  The intention of the Congress that wrote the law – could it have been to “prevent” disease? – well, there’s no need to deal with such bothersome details.

The mask mandate – wait for it – was found to be “arbitrary and capricious” and thus illegal because “the CDC failed to adequately explain its reasoning.”  As in…uh…the Centers for Disease Control and Prevention was attempting to…uh…prevent the spread of a deadly disease, one would think.

But not Judge Mizelle. Nit-picking would be a reasonable way to describe the mind at work in this decision, but that would be unkind to nits.

The whole way through this abomination of “legal” reasoning, I kept thinking of the masked face of the doctor looking down at me as the anesthesia took hold at Cedars Sinai in Los Angeles in 1999.  He was the guy who invented the fusion he did on my L4 and L5 vertebrae using screws and other metallic devices to hold the vertebrae in place.  It was a complicated operation that took seven hours and involved opening up my abdomen and moving aside my small and large intestines so he could gain access to my spinal column from the front, as it were.

As a medical procedure in a hospital, it came under the purview of the Department of Health and Human Services, of which the CDC is a part.  Reading this “decision,” I thought, what if some judge had decided that the “sanitation” required to prevent the spread of disease within an operating room was limited only to “cleaning measures” like making a surgeon wash his hands.  Surgeons might then be free to wear street clothes to operate on someone, free to skip wearing a mask because a mask doesn’t “clean” anything.  Since the operation took so long, maybe he could have relaxed with a cigar… 

See where I’m going with this?  There is such a thing as practical measures like wearing a mask so you don’t spit into the wide open intestinal cavity of a patient like, say, me.  Or breathe microscopic particles of an infectious agent like a common cold or a flu or even COVID-19 on a nearby human being like, say, me.

This jewel from the crown of the Heritage Society was so horrified by the powers of the government, she went so far as to warn that if the mask mandate was allowed to stand, “the power to improve ‘sanitation’ would easily extend to requiring vaccinations against COVID-19, the seasonal flu, or other diseases.”

Being required to wear a mask so you don’t infect, or be infected by, the person next to you on an airplane, and then possibly carry that infection to others and infect them….with nearly a million dead, the horror that such a rule should stand!