Federal Judge Strikes Down Mask Mandate

David and Sarah dive into the nationwide injunction ending the Biden administration’s travel mask mandate, ...

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David and Sarah dive into the nationwide injunction ending the Biden administration’s travel mask mandate, with Sarah adopting a “nope, yep, yep” approach to the decision and David countering with a “nope, yep, nope.” They also discuss Gov. Ron DeSantis and the First Amendment and conclude with a rather amusing example of Uber getting exactly what it asked for… and not liking it at all.

Show Notes:

–Decision that struck down the federal mask mandate

–David Latt: “Musings On Mizelle’s Mask-Mandate Magnum Opus”

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  1. Avatar photo
    Nolan Smith

    Can we get an "Arbitrary and Capricious" jingle from Sarah every time?

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      Sarah Isgur vertical-nib Author

      It writes itself!

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  2. Andrew

    I think y'all may have given short-shrift to Judge Mizelle's opinion. While I do concede that her definition of sanitize is a little odd, I think you both largely ignored Judge Mizelle's first point with respect to how you read a statute. Judge Mizelle relies heavily on the eviction moratorium case at SCOTUS and in the 6th Cir. In Tiger Lily, the one out of the 6th Cir., the appellate court affirmed the trial court's narrow reading of the statute because a broader reading of the statute would create a non-delegation problem and the constitutional avoidance doctrine then requires a narrow reading. In many of the eviction moratorium cases, the government was arguing that §264 would give them the authority to control the congregation of peoples to such an extent that the CDC could have required mail-in voting on election days in order to stem the spread of communicable disease–the purported reason for the eviction moratorium when it was an executive order. I imagine there was likely such an argument here like the CDC possessing the authority to require masks for all interstate travel. Given the constitutional avoidance issues cautioning a narrow reading, as well as the government's own arguments in these cases, I think that would go a long way in explaining why you're seeing results like you're seeing, and why I think Judge Mizelle's opinion and method for reading statutes makes much more sense than you give her credit for.

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    Ian Fillmore

    David and Sarah, I'd love a (short) follow up to your predictions that Elon Musk would not acquire Twitter. You both seemed pretty confident that this would go nowhere (and I tended to agree with you). It now appears to be a done deal. Predicting the future is hard, and anyone is bound to get things wrong. But I'm curious about why you think you got this wrong. Did you think this was just a stunt on Musk's part? Did you expect Twitter's board to be more intractable? Did it just seem too radical to actually come true?

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      Sarah Isgur vertical-nib Author

      A top topic on my mind for Friday!

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  4. Avatar photo
    Andrew Ceonzo

    Incoming 1L interested in administrative law with a question about legal strategy:

    The administration is claiming that it did not need to go thru notice and comment on the mask mandate because it was necessary as an emergency measure due to the public health crisis of covid. But the administration (at least as of this writing) is not seeking a stay of the district court's ruling and injunction, which seems to imply that the administration does not view the mandate as so important that it seeks its immediate reinstatement pending further review by the 11th circuit.

    Can the administration's decision not to seek a stay be used as evidence on appeal that it did not have good cause to skip notice and comment and usual APA procedure? Can legal strategy decisions, such as the remedy a party seeks or declines to seek, be used as substantive evidence in a similar way to how the Diet Coke and Biscoff cookies exception to the mask mandate has been used?

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  5. Joe O

    Can we stop discussing masks?

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  6. Matt Foster

    This one was so great! AO is always good but I really enjoyed this one. Looking forward to the conversation with Steve Vladeck on Monday!

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    Jack

    I agree with Sarah, therefore I’m now a feminist.

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  8. Ben Svendsen

    Great pod as always.

    The one thing I would have appreciated a more thorough explanation of is this: Regarding the Disney/Reedy creek thing, it seems obvious enough to me that this move is retaliatory based on the protected speech of Disney and all, but I'd like to know more about what jurisprudential standards there are to establish that. When a legislature composed of dozens or hundreds of people pass a law, you probably have as many differing motives for passing it. Who's retaliatory motives are dispositive? It seems like two terrible ways to establish constitutionally suspect motives would be: 1) that the legislature actually votes on a resolution that says "we're doing this because we don't like your speech," and 2) it only takes one or a few legislators to say "I'm voting for this because I don't like your speech. Do any of y'all smart people know if there's jurisprudence on that?

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    George.Skinner

    The fact that the mask mandate on airlines wasn’t implemented until February 2021 is surprising, but there’s a fairly obvious explanation for that: Trump left office in January 2021, and the Biden administration took office and their appointees assumed leadership of the CDC. The Trump administration opposed restrictions, Trump himself famously refusing to wear one and even discouraging others around him from wearing them.

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    Jake

    This is going to sound glib, but it is a sincere question: is there any example throughout history of an administrative state/bureaucratic rule that has been successfully contained or rolled back? It seems to me that it can only grow and become more and more sclerotic until the society collapses (not necessarily from the growth of the administrative state, but that is the only thing that clears it out). Then again, I have a similar view of the state in general.

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