Arizona Attorney General Mark Brnovich joined 22 other states this week in filing an amicus curiae brief at the appellate level opposing the Center for Disease Control’s attempt to continue a mask mandate on public transportation, which includes airplanes and buses. He sued the CDC over the requirement along with 20 other attorneys general in March.
“Upholding the law is especially important during times of emergency,” he said in a statement. “Federal overreach is most often attempted under the guise of addressing a crisis.”
A federal judge initially agreed with the plaintiffs earlier this year and overturned the mask mandates. However, the Department of Justice appealed the ruling, prompting the attorneys general to respond to the appeal.
They summarized what has become a common theme suing the Biden administration over COVID-19, “Throughout the pandemic, this administration has turned to novel, expansive, and dubious readings of its authorities.”
The attorneys general state that the mandate exceeded the CDC’s statutory authority. The CDC issued the mandate citing its “sanitation” powers. However, “‘sanitation’ authorizes CDC to demand cleaning, but it does not authorize CDC to require any action that may result in cleanliness, much less on a nationwide basis.” The brief explains that masks don’t clean anything, they trap respiratory drops in place regardless of infection. The attorneys general sarcastically added, “And it certainly does not ‘clean’ anything — on the contrary, the one thing it does with certainty is make the mask quite dirty.”
Additionally, Congress “didn’t say ‘sanitation,’ it said ‘secur[e] the best sanitary condition.’” Turning again to sarcasm, the attorneys general said the CDC thinks that “Congress gave the agency vast power to impact the economy in the fourth term of a seven-word list buried in the second sentence of a statute.” They said, “CDC cannot demand that domestic travelers be examined without evidence that they are carrying disease.” There must be individualized suspicion before the CDC can “require visual inspections that someone is wearing a mask.”
The brief goes into a legal analysis of how the word sanitation should be interpreted, explaining how the trial court judge’s interpretation was correct, limiting it to mean “identifying, isolating, and destroying the disease itself,” citing an interpretation from a previous case.
When Congress wanted a broader interpretation, it specifically spelled it out, the brief argued. Congress specifically authorized a broader definition of sanitation in the Public Health Service Act, authorizing the CDC to additionally “secur[e] sanitary conditions” and “other quarantine procedures” for preventing COVID-19 transmission on ships.
The attorneys general cited the major-questions doctrine, stating that “courts should ‘hesitate’ before concluding that Congress delegated substantial authority over matters of ‘economic and political significance’ to an agency.”
The brief said the CDC is authorized by law to take plenty of other actions to stop the spread of COVID-19, including requiring inspection, fumigation, and disinfection. It simply cannot “adopt any ‘preventative’ regulation.”
Next, the attorneys general argued that the CDC violated the law by issuing the mandate without going through notice and comment rulemaking. The CDC said it invoked the good-cause exception to skip that. However, the brief noticed that the agency offered no specifics to explain this and “this Court has been careful to avoid blessing a freestanding pandemic exception to notice and comment procedures.” Additionally, there was no need to hurry since the CDC didn’t issue the mandate until “almost thirteen months since the Secretary of Health and Human Services had declared a public health emergency.”
The attorneys general said the mandate is arbitrary and capricious for several reasons. It contains “numerous exceptions that CDC did not explain or justify,” and violates the CDC’s own procedures which allow the agency to act only if local measures are inadequate. The CDC failed to explain why “why a two-year old was covered but a younger child was not,” or “why eating and drinking were excepted, but other activities were not.”
Brnovich has aggressively challenged COVID-19 restrictions and mandates. He sued the Biden administration over its COVID-19 vaccine mandate for federal workers and a federal district court judge agreed, striking it down. He led a coalition of 13 other states suing the Biden administration over the mandate for healthcare workers, and led a coalition of 11 states suing over the mandate for private businesses.
He filed a brief challenging Gov. Doug Ducey’s lockdown order closing bars, which became moot when Ducey ended the pandemic restrictions. Last September, Brnovich issued a legal opinion that the city of Tucson’s vaccine mandate for employees was illegal.
A source inside the Arizona attorney general’s office who preferred not to be identified told The Arizona Sun Times that the lawsuits against the Biden administration were deliberately filed separately. The intent was to get Biden’s lawyers to respond and show their cards in the first lawsuit, so Brnovich would know their strategy when he filed the second lawsuit and any others that may become necessary.
Both federal and local governments have been gradually dropping their COVID-19 restrictions and mandates as the pandemic recedes. The CDC dropped most of its mask guidance and its quarantining and screening recommendations on Thursday. Greta Massetti, an author of the guidelines, stated, “The current conditions of this pandemic are very different from those of the last two years.”
Masks are no longer recommended except in areas where community transmission is deemed high, or if a person is considered at high risk of severe illness. People no longer need to distance themselves six feet from others and do not need to quarantine if they come into contact with an affected person. The recommendation that schools test every day was dropped. Locally, most school districts have dropped masking requirements, making them optional.
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Rachel Alexander is a reporter at The Arizona Sun Times and The Star News Network. Follow Rachel on Twitter. Email tips to [email protected].
