A legal analysis of Judge Kathryn Kimball Mizelle’s horrid mask mandate opinion.
So, you’ve probably heard by now that Judge Kathryn Kimball Mizelle, a Trump-appointed judge in Florida, issued a sweeping opinion striking down the Biden administration’s requirement that passengers wear masks on airplanes, trains, and similar methods of transportation. This requirement from the Centers for Disease Control and Prevention (CDC) provided that “a person must wear a mask while boarding, disembarking, and traveling on any conveyance into or within the United States,” although it contained a few exceptions. For the moment, it is not in effect, as the Biden administration weighs whether to appeal the judge’s order. Hours after the decision, the country’s four largest airlines dropped their mask requirements — prompting confusion, sometimes mid-flight. Mizelle is the apotheosis of former President Donald Trump’s approach to selecting federal judges. Appointed to the bench at age 33, Mizelle was fresh off a clerkship for Justice Clarence Thomas and working as an associate at Jones Day, a large law firm closely associated with Trump, when she received her lifetime appointment to the federal bench. At the time, Mizelle had just eight years of experience practicing law — meaning that she had not even yet completed the nine-and-a-half years of practice that Jones Day typically requires for its lawyers to become partners of the firm. But what Mizelle lacks in experience, she made up for in her ability to rack up conservative credentials. In addition to her Thomas clerkship, Mizelle clerked for two other prominent members of the conservative Federalist Society. At a 2020 speech to that organization, she quipped that paper money is unconstitutional. Mizelle was also nominated by a president who was about to be repudiated by the American public — Trump officially named her in September 2020, two months before Joe Biden defeated Trump in both the popular vote and the Electoral College. The Senate confirmed her while Trump was a lame duck, a week-and-a-half after the election was called for Biden. 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. When Mizelle was up for Senate confirmation, the American Bar Association determined that she “ has a very keen intellect, a strong work ethic and an impressive resume,” despite the fact that she lacked enough experience to be traditionally qualified for the federal bench. By all accounts, Mizelle is a smart early-career attorney who could be a very effective advocate. Neither Justice Thomas nor Jones Day have a reputation for hiring rank incompetents, though the former, in particular, is known for hiring hardline conservatives. 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. Mizelle’s opinion is an abomination against textual interpretation Health Freedom turns on a federal law that empowers the CDC to “make and enforce such regulations as in [its] 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.” This statute also gives several examples of actions that the CDC is allowed to take, including regulations providing for “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 well as any “other measures” the CDC determines “may be necessary.
