Texas Attorney General Ken Paxton announced Thursday afternoon that he will be joining an amicus brief challenging the Center of Disease Control’s handling on mask mandates. The Florida-led amicus brief filed in the Atlanta-based U.S. 11th Circuit Court of Appeals is followed by 22 other states.
In April 2022, U.S. District Judge Kathryn Kimball Mizelle ruled that the CDC had overstepped its authority by requiring passengers on public transportation to wear masks. The decision overturned the CDC mask mandate, which the Department of Justice said they would appeal if the CDC said masks were still necessary.
“No one doubts that the COVID–19 pandemic has posed challenges for every American,” the brief states, quoting a United States Supreme Court’s decision striking down the OSHA vaccine mandate from January 2022.
”But the question in this case is not how best to confront those challenges. Rather, it is who decides—is it ‘an administrative agency in Washington,’ or ‘state and local governments across the country and the people’s elected representatives in Congress’? If that sounds familiar, it should. Throughout the pandemic, this administration has turned to novel, expansive, and dubious readings of its authorities. CDC has been among the worst offenders, making ‘unprecedented assertion[s] of power.’”
The brief lists four grievances that the states have with the CDC’s issuing of the mask mandates.
The first argument is against the CDC’s power to require sanitation measures, which the states argue cannot support the mask mandate:
Moreover, the statute joins “sanitation” in a list with “inspection, fumigation, disinfection, . . . pest extermination, [and] destruction” of infected animals and articles. Id. Those terms are all focused on identifying a disease-causing condition, isolating it, and then destroying it, while a mask mandate merely impedes the breathing of individuals without regard to whether they are diseased.
The second argument made is that the mask mandate was invalid because the CDC did not give the states notice or ability to give their opinions on the matter before implementing the mandate:
The mask mandate is invalid as well because it failed to go through notice and comment procedures. CDC defends its rule by invoking the good cause exception. But CDC offered no specifics about why this rule needed to be issued without notice and comment, and this Court has been careful to avoid blessing a freestanding pandemic exception to notice and comment procedures.
Their third argument is that the mandate disregarded facts and laws, especially because the CDC had numerous exceptions for the mandate but never explained them:
The mask mandate is also arbitrary and capricious. For one, the mandate has numerous exceptions that CDC did not explain or justify. Beyond that, the mandate violates CDC’s own regulations. CDC regulations say that it cannot act unless it finds local measures inadequate. But here, CDC never even studied local measures, much less developed a method to determine whether those measures are adequate.
Lastly, the fourth argument laid out is that the “major-questions doctrine”—which requires Congress to speak clearly when authorizing agency action—supports a narrow reading. Under the doctrine, the court must wait to conclude if Congress delegates substantial authority over matters of economic and political significance:
In any event, the major-questions doctrine is concerned with “agencies asserting highly consequential power beyond what Congress could reasonably be understood to have granted.” West Virginia, 142 S. Ct. at 2609. That is precisely what CDC is “asserting” here.
Though mask mandates are no longer in effect in most states, and there is no sign that the transportation mask mandate is set to return anytime soon, this legal battle will set a precedent for how the CDC operates and controls states when it comes to mandates.