Mask Mandate Struck Down Because ‘Sanitation’ Doesn’t Mean ‘Keeping Things Clean’ For… Reasons

Linda D. Garrow

Kathryn Mizelle, who sits on the federal bench despite getting tapped for the job as an associate a year removed from her own clerkship, flexed her ABA “not qualified” rating in a rambling, often incoherent opinion striking down the federal transportation mask mandate. To be clear, this is why when Amy Coney Barrett says “read the opinion,” she doesn’t write an opinion. When you have to try to justify this nonsense it comes out as the sort of gibberish Mizelle dumped on us today.

In any event, Mizelle used her district court seat to strike down the mandate rule across the country based on the complaints of a couple of potential airline passengers who say masks scare them. And Mizelle did it because she’s deeply serious about statutory interpretation…

But after rigorous statutory analysis, the Court concludes that § 264(a) does not authorize the CDC to issue the Mask Mandate.

I guess that depends on what you mean by “rigorous.” To the extent she means she’s going to put a lot of effort into it, then the opinion probably qualifies. If one views rigorous as “accurate” or “strictly applied” then… not so much.

Instead, what we’ve got here is an exercise in Textualism Ad Absurdum doing extraordinary violence to plain English all in the name of fidelity to the imagined text.

The opening sentence of § 264(a) grants the CDC power to issue regulations that “in [its] judgment are necessary” to prevent the spread of communicable disease. The second sentence “informs the grant of authority by illustrating the kinds of measures that could be necessary: inspection, fumigation, disinfection, sanitation, pest extermination, and destruction of contaminated animals and articles.” …. In other words, “the second sentence narrows the scope of the first.” …. Thus, if § 264(a) authorizes the Mask Mandate, the power to do so must be found in one of the actions enumerated in the second sentence.

Yep. Probably “sanitation” since surgical masks are literally called, “sanitary face masks.” That should conclude the opinion. Friends, it does not.

The context of § 264(a) indicates that “sanitation” and “other measures” refer to measures that clean something, not ones that keep something clean.

Wait, what? Well, she says that sanitation has two meanings and we have to choose between them because… reasons.

The PHSA does not define “sanitation.” If “a term goes undefined in a statute, [courts] give the term its ordinary meaning.” …. Courts often start with dictionaries. Given that the statute was enacted in 1944, the Court looks to dictionaries from the early and mid-20th century to begin its analysis. They provide two senses of sanitation that are relevant here. First, sanitation may refer to measures that clean something or that remove filth, such as trash collection, washing with soap, incineration, or plumbing. See WEBSTER’S NEW INT’L DICTIONARY 2214 (William Allan Neilson et al. eds., 2d ed. 1942) (defining “sanitation” to include “rendering sanitary”); FUNK & WAGNALLS, NEW STANDARD DICTIONARY 2172 (Isaac K. Funk, et al. eds., 1946) (defining “sanitation” as “the removal or neutralization of elements injurious to health”). Second, sanitation may refer to measures that keep something clean. See FUNK & WAGNALLS, supra at 2172 (the “devising and applying of measures for preserving and promoting public health”); BERNARD S. MALOY, THE SIMPLIFIED MEDICAL DICTIONARY FOR LAWYERS (2d ed. 1951) (“The use of sanitary measures to preserve health.”). Examples of this sense of sanitation include air filters or barriers, masks, gowns, or other personal protective equipment.’

Put simply, sanitation as used in the PHSA could have referred to active measures to cleanse something or to preserve the cleanliness of something. While the latter definition would appear to cover the Mask Mandate, the former definition would preclude it. Accordingly, the Court must determine which of the two senses is the best reading of the statute.

“The former definition would preclude it.” Why?

No, seriously, why? The process of cleaning and the process of keeping something clean may be two separate things but they’re not zero sum any more than “embarrassing” can be both the act of writing this opinion and the opinion itself.

The fact that the word might have multiple meanings doesn’t matter when the meanings don’t contradict each other. She’s just decided that two different meanings of “making things clean” are necessarily exclusionary and then arbitrarily chose the one that helps her outcome, declaring it the obvious meaning. Her reasoning is that the Centers for Disease Control was never intended to, for example, tell hospitals to stay clean, only to regulate what soap they have to use to clean up after the fact. This is, of course, idiotic.

But at least she also manages to screw up basic canons of construction. She cites the concept that words in a list should be given similar meaning — a rule that prevents reading “regulating products from twigs, leaves, and barks” to silence a dog — to say that sanitation must mean “to destroy the disease” because “disinfected” is included. Except the rule against rendering terms superfluous would fit better here because under her preferred definition of sanitation there’s no reason to include the word disinfected in the first place.

She then attempts to deal with the surplusage rule…

If the government is correct that sanitation allows for the CDC’s Mask Mandate because it promotes hygiene and prevents the spread of disease, then the remaining words in § 264(a), such as disinfection and fumigation are unnecessary. Every act necessary to prevent disease spread would be possible under sanitation. It would thus be impossible to give effect “to every clause and word of [the] statute,” … because these separate words would all be subsumed under the umbrella of “conventional `sanitation’ measure[s]….”

She’d have been better off just pretending it didn’t exist than commit those words to paper. Because she’s the one who thinks sanitation means “the removal or neutralization of elements injurious to health” which would obviate disinfection and fumigation. She’s incapable of keeping a consistent argument from page to page.

One method to assess the ordinary meaning of a term is to search a database of naturally occurring language. A search returns the desired word as well as its context and, with a sufficient sample size, search results permit inferences on how a word was used. This method is known as corpus linguistics. The Court here searched the Corpus of Historical American English (COHA) to find uses of “sanitation” between 1930 and 1944.

She can call it corpus linguistics. The rest of us call it Googling newspapers. I know legislative history is anathema to these people, but this statute has a well documented history and it was all about giving the surgeon general the power to prevent the spread of infectious respiratory disease. Basically the first thing done under the law was the creation of a federal tuberculosis control program. That’s probably more informative than a 1932 article about the Philadelphia Department of Sanitation buying new garbage trucks, but this is why I’m not on the federal bench for the next 60 years like this font of judicial wisdom.

Maybe *gestures at everything above* we should listen the next time the ABA tells us someone has no business being on the federal bench.

Earlier: Shocking No One, ABA Thinks Biglaw ASSOCIATE Not Ready For Federal Bench

HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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