Biden administration’s appeal of judge’s mask-mandate smackdown is just a power grab | Opinion

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 at the CDC, 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, and it was the CDC’s opinion on mask mandates that should rule the land.

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? Are CDC opinions above the law?

Press Secretary Jen Psaki made clear why the Biden administration is appealing the court’s order: “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 — in this case, COVID. 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 59-page 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 heavy-handedly 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.

Fauci’s constitutional rewrite notwithstanding, 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.

This story was originally published May 2, 2022 at 1:20 PM.