WEBVTT 1 00:00:00.000 --> 00:00:06.200 Today we have some fun. We look at the national de-masking on trains, planes, and automobiles. 2 00:00:06.200 --> 00:00:10.200 We'll look at the logic behind the ruling next. 3 00:00:10.200 --> 00:00:26.500 ♪♪♪ 4 00:00:26.500 --> 00:00:28.500 Hey, welcome back to The Barry Farrow Show. 5 00:00:28.500 --> 00:00:33.000 Today we look at the de-masking of trains, planes, and automobiles. 6 00:00:33.000 --> 00:00:36.500 It's a win for freedom and logic. 7 00:00:36.500 --> 00:00:41.500 You know, whether you travel or not, you've no doubt heard that the mask mandate has been quashed 8 00:00:41.500 --> 00:00:43.500 by a federal judge in the Tampa District. 9 00:00:43.500 --> 00:00:46.500 The White House said the ruling was disappointing. 10 00:00:46.500 --> 00:00:49.500 The Justice Department said they'll appeal. 11 00:00:49.500 --> 00:00:53.500 Passengers from Spain to Atlanta heard the announcement in mid-flight 12 00:00:53.500 --> 00:00:56.500 and they whistled with loud, spontaneous applause. 13 00:00:56.500 --> 00:00:58.500 Flight attendants were euphoric. 14 00:00:58.500 --> 00:01:02.500 The left-wing media accused the judge of misapplying the law. 15 00:01:02.500 --> 00:01:09.500 The New York Post says that the left's attacks show that they are in fact the ones who are ignorant 16 00:01:09.500 --> 00:01:11.500 and do not understand the law. 17 00:01:11.500 --> 00:01:17.500 Now, if the Department of Justice really does follow through with an appeal, will it hold up? 18 00:01:17.500 --> 00:01:19.500 Well, I don't think so. Let's have some fun. 19 00:01:19.500 --> 00:01:25.500 What I'm going to do is just go through the judge's 59-page ruling and collapse it to six. 20 00:01:25.500 --> 00:01:30.500 I'm going to paraphrase some things, but I'm going to try to stay true to what the judge actually said. 21 00:01:30.500 --> 00:01:33.500 You can decide for yourself, but I think it's pretty clear on four counts 22 00:01:33.500 --> 00:01:36.500 that the judge ruled in accordance with the law. 23 00:01:36.500 --> 00:01:38.500 And thank God. 24 00:01:38.500 --> 00:01:41.500 So, Judge Catherine Mizell is a young federal judge. 25 00:01:41.500 --> 00:01:45.500 She serves as United States District Judge in the Tampa District. 26 00:01:45.500 --> 00:01:48.500 She ruled that the mask mandate was not lawful. 27 00:01:48.500 --> 00:01:54.500 Judge Mizell was appointed to her post when she was 33 in 2020. 28 00:01:54.500 --> 00:02:00.500 The case at hand was brought by two women and the Health Freedom Defense Fund back in July 2021. 29 00:02:00.500 --> 00:02:07.500 The women, Anna Daza and Sarah Pope, sued the CDC and Joseph Biden, the POTUS, and other health officials 30 00:02:07.500 --> 00:02:11.500 claiming the Administrative Procedure Act was unlawfully violated. 31 00:02:11.500 --> 00:02:15.500 And in my opinion, she wrote a fantastic 59-page opinion. 32 00:02:15.500 --> 00:02:17.500 It's logical and compelling. 33 00:02:17.500 --> 00:02:19.500 We'll summarize it here. 34 00:02:19.500 --> 00:02:23.500 So, first, the judge summarizes the issue at hand. 35 00:02:23.500 --> 00:02:29.500 Federal law required that people wear masks in airports, trains, stations, on airplanes, buses, 36 00:02:29.500 --> 00:02:31.500 and most other means of transportation. 37 00:02:31.500 --> 00:02:36.500 And if you failed to comply, you could go to jail, be fined, but at a minimum, 38 00:02:36.500 --> 00:02:39.500 be removed from your seat on the bus, the train, or the plane. 39 00:02:39.500 --> 00:02:41.500 A form of quarantine. 40 00:02:41.500 --> 00:02:44.500 At the end of the day, she said the mask mandate violated the authority 41 00:02:44.500 --> 00:02:49.500 and the process that the CDC is required to go through for rulemaking. 42 00:02:49.500 --> 00:02:54.500 The process is outlined in a law called the Administrative Procedure Act. 43 00:02:54.500 --> 00:02:59.500 It requires the government to obey certain transparency laws and allow for the public to weigh in. 44 00:02:59.500 --> 00:03:01.500 How about them apples? 45 00:03:01.500 --> 00:03:05.500 This act was violated, among other things, which we'll get to. 46 00:03:05.500 --> 00:03:09.500 The judge states that the obvious, certain obvious things about the virus. 47 00:03:09.500 --> 00:03:15.500 It continued to spread, even though the government engaged in unprecedented restrictions 48 00:03:15.500 --> 00:03:19.500 on freedom of movement and basic freedoms in general. 49 00:03:19.500 --> 00:03:24.500 So after Biden took office, he issued a mask mandate for all forms of transportation, 50 00:03:24.500 --> 00:03:29.500 everything they could reach, planes, trains, buses, boats, subways, 51 00:03:29.500 --> 00:03:36.500 and all the terminals and all the public spaces that would lead up to the terminals. 52 00:03:36.500 --> 00:03:39.500 This was in January and February of 2021. 53 00:03:39.500 --> 00:03:44.500 Now at this time, the CDC admitted that it didn't allow for public comment. 54 00:03:44.500 --> 00:03:49.500 It said the issue was too urgent to allow others with other points of view to weigh in. 55 00:03:49.500 --> 00:03:56.500 At the same time, the CDC declared itself exempt from being guided by the APA to begin with. 56 00:03:56.500 --> 00:04:02.500 So back in February 2021, the CDC had laid out what they thought are acceptable masks. 57 00:04:02.500 --> 00:04:05.500 They said that the masks can be homemade. 58 00:04:05.500 --> 00:04:07.500 They can be a solid piece of material. 59 00:04:07.500 --> 00:04:12.500 The judge said the CDC in their mandate did not differentiate on the type of mask 60 00:04:12.500 --> 00:04:15.500 that's actually effective at blocking transmission. 61 00:04:15.500 --> 00:04:19.500 The CDC even included ride-sharing vehicles in their mandate, 62 00:04:19.500 --> 00:04:23.500 and any marina, seaport, subway station, bus, terminal, aircraft, trains, 63 00:04:23.500 --> 00:04:25.500 and any other means of transport. 64 00:04:25.500 --> 00:04:33.500 In other words, the CDC declared itself the de facto ruler over all those public transportation hubs. 65 00:04:33.500 --> 00:04:37.500 And they said that the operators, the people working in those areas, 66 00:04:37.500 --> 00:04:44.500 had to use a best-effort approach to enforce the mask mandate, or they'd be violating the law. 67 00:04:44.500 --> 00:04:49.500 Now the CDC actually has police power. 68 00:04:49.500 --> 00:04:53.500 And with this mask mandate, they declared themselves the sheriff, 69 00:04:53.500 --> 00:04:57.500 and all those employees of all those transport-related companies and organizations 70 00:04:57.500 --> 00:04:59.500 all across the country, 71 00:05:00.000 --> 00:05:02.480 People were their deputies. 72 00:05:02.480 --> 00:05:05.320 So the two plaintiffs, Daza and Pope, 73 00:05:05.320 --> 00:05:06.760 have medical exemptions. 74 00:05:06.760 --> 00:05:08.500 And they should have been provided some grace 75 00:05:08.500 --> 00:05:11.720 and leniency from the airlines, but they weren't. 76 00:05:11.720 --> 00:05:14.920 The Health Freedom Defense Fund took up their case. 77 00:05:14.920 --> 00:05:18.280 That fund opposes laws that force individuals 78 00:05:18.280 --> 00:05:22.400 to submit to medical products, procedures, 79 00:05:22.400 --> 00:05:25.060 or devices against their will. 80 00:05:25.060 --> 00:05:28.800 So they sued Biden, the Secretary of Health, 81 00:05:28.800 --> 00:05:31.400 the CDC director, and the director of the CDC's 82 00:05:31.400 --> 00:05:34.440 Division of Global Migration and Quarantine. 83 00:05:34.440 --> 00:05:36.840 So to make this easier to refer to, 84 00:05:36.840 --> 00:05:39.640 and to disclose my personal view on the matter, 85 00:05:39.640 --> 00:05:42.840 I'm gonna call the plaintiff and the legal team 86 00:05:42.840 --> 00:05:44.160 the Freedom Guys. 87 00:05:45.000 --> 00:05:46.960 They asked for a summary judgment. 88 00:05:46.960 --> 00:05:48.560 This is an order that can only be given 89 00:05:48.560 --> 00:05:51.260 if there's no dispute to any material fact. 90 00:05:51.260 --> 00:05:53.740 And in that instance, it's something 91 00:05:53.740 --> 00:05:56.800 that you're entitled to, it's just a matter of law. 92 00:05:56.800 --> 00:05:57.640 But it's hard to get. 93 00:05:58.400 --> 00:06:00.000 There's gotta be no ambiguity. 94 00:06:00.000 --> 00:06:03.420 Now, in matters related to the Administrative Procedure Act, 95 00:06:03.420 --> 00:06:08.080 the district judge, by law, sits as the appellate tribunal. 96 00:06:08.080 --> 00:06:10.280 He or she has the power to rule 97 00:06:10.280 --> 00:06:12.200 in accordance with that law. 98 00:06:12.200 --> 00:06:16.320 It's a clear law designed to curb the power 99 00:06:16.320 --> 00:06:19.040 of unelected rule makers. 100 00:06:19.040 --> 00:06:23.040 So basically, the law says, if an agency, like the CDC, 101 00:06:23.040 --> 00:06:26.880 does not follow the Administrative Procedure Act, 102 00:06:26.880 --> 00:06:29.160 then the judge can step in and give relief 103 00:06:29.160 --> 00:06:31.240 to the plaintiff by overturning 104 00:06:31.240 --> 00:06:33.900 whatever that order or rule was. 105 00:06:33.900 --> 00:06:38.080 So in this case, the mask mandate can be legally overturned 106 00:06:38.080 --> 00:06:41.520 by one federal judge at the summary judgment level 107 00:06:41.520 --> 00:06:43.540 if the law is perfectly clear. 108 00:06:44.400 --> 00:06:46.600 So the legal team for the Freedom Guys 109 00:06:46.600 --> 00:06:50.040 had originally also sued the President of the United States, 110 00:06:50.040 --> 00:06:51.960 since he is the one who had actually issued 111 00:06:51.960 --> 00:06:55.240 the executive order to begin with on the mask mandate. 112 00:06:55.280 --> 00:06:57.840 But they dropped their challenge against Biden 113 00:06:57.840 --> 00:06:59.680 to make it easier to win the summary judgment 114 00:06:59.680 --> 00:07:01.360 against the CDC. 115 00:07:01.360 --> 00:07:03.860 This also removed the White House as a defendant, 116 00:07:03.860 --> 00:07:06.360 so they had one less defendant to worry about. 117 00:07:06.360 --> 00:07:09.160 That didn't mean that they believed Biden was innocent. 118 00:07:09.160 --> 00:07:13.480 It's just a legal maneuver to streamline the case. 119 00:07:13.480 --> 00:07:16.080 So what this did is enabled the Freedom Guys 120 00:07:16.080 --> 00:07:18.760 to go after the CDC like a laser. 121 00:07:18.760 --> 00:07:20.720 And they went after them with four claims 122 00:07:20.720 --> 00:07:22.580 that they believed they could win. 123 00:07:22.580 --> 00:07:26.060 The first claim by the Freedom Guys against the CDC 124 00:07:26.060 --> 00:07:28.460 was that the mask mandate itself 125 00:07:28.460 --> 00:07:31.180 exceeds the authority of the CDC. 126 00:07:31.180 --> 00:07:32.660 They just don't have that authority. 127 00:07:32.660 --> 00:07:36.340 The CDC is supposed to only possess the explicit authority 128 00:07:36.340 --> 00:07:38.300 that they were given by Congress. 129 00:07:38.300 --> 00:07:40.420 So the CDC had claimed that they had authority 130 00:07:40.420 --> 00:07:41.780 under the Public Health Services Act 131 00:07:41.780 --> 00:07:43.620 to force people to wear masks. 132 00:07:43.620 --> 00:07:47.460 The CDC was using a section of the 1944 Act 133 00:07:47.460 --> 00:07:50.980 and it's section 264 and has a subsection, 134 00:07:50.980 --> 00:07:52.380 it's paragraph A. 135 00:07:53.140 --> 00:07:53.980 Now in that paragraph, 136 00:07:53.980 --> 00:07:58.740 it says that they have the power to inspect, fumigate, 137 00:07:59.620 --> 00:08:04.580 disinfect, sanitize and exterminate pests, 138 00:08:04.580 --> 00:08:08.340 destroy animals or articles that are found to be infected. 139 00:08:09.220 --> 00:08:14.220 So where in there is the power to mandate masks? 140 00:08:14.420 --> 00:08:18.780 Their lawyers said that in the word sanitize or sanitation 141 00:08:18.780 --> 00:08:21.620 is where they get all of their power. 142 00:08:21.620 --> 00:08:22.620 Really? 143 00:08:22.620 --> 00:08:24.860 So the judge explains that the CDC 144 00:08:24.860 --> 00:08:27.460 can in fact apprehend or detain individuals 145 00:08:27.460 --> 00:08:28.820 when they're coming to the United States 146 00:08:28.820 --> 00:08:30.580 from another country. 147 00:08:30.580 --> 00:08:31.940 But they can only do that 148 00:08:31.940 --> 00:08:34.820 when they have a very strong good faith belief 149 00:08:34.820 --> 00:08:37.460 that the person has the disease. 150 00:08:37.460 --> 00:08:39.100 Can't just do it to everybody. 151 00:08:39.100 --> 00:08:41.460 The 1944 Public Health Service Act 152 00:08:41.460 --> 00:08:45.500 is limited to quarantining infected individuals 153 00:08:45.500 --> 00:08:47.380 and prohibiting the import of animals 154 00:08:47.380 --> 00:08:49.500 known to transmit the disease. 155 00:08:49.500 --> 00:08:53.740 So the judge said, as a matter of fact, prior to 2020, 156 00:08:53.740 --> 00:08:56.660 that this has been rarely invoked. 157 00:08:56.660 --> 00:08:59.060 And since 2021, the CDC has used that section 158 00:08:59.060 --> 00:09:00.340 of the Public Health Service Act 159 00:09:00.340 --> 00:09:02.900 to grant itself the power to shut down 160 00:09:02.900 --> 00:09:04.500 the cruise ship industry, 161 00:09:04.500 --> 00:09:08.100 interfere with landlord's ability to evict tenants 162 00:09:08.100 --> 00:09:09.820 who didn't pay their rent 163 00:09:09.820 --> 00:09:13.580 and require people to wear masks. 164 00:09:13.580 --> 00:09:14.780 Now this isn't the only case 165 00:09:14.780 --> 00:09:17.540 where the CDC has been ruled against. 166 00:09:17.540 --> 00:09:20.620 The CDC overstepped their authority previously. 167 00:09:20.620 --> 00:09:23.500 The judge refreshes our recent memory 168 00:09:23.500 --> 00:09:25.620 that before this case, 169 00:09:25.620 --> 00:09:27.980 the courts had already ruled 170 00:09:27.980 --> 00:09:30.660 that the CDC exceeded its authority 171 00:09:30.660 --> 00:09:33.620 on the shutting down of the cruise ship industry 172 00:09:33.620 --> 00:09:35.820 and interfering with landlord's rights 173 00:09:35.820 --> 00:09:36.900 to conduct their business 174 00:09:36.900 --> 00:09:38.700 in accordance with their business model. 175 00:09:38.700 --> 00:09:42.020 So the judge is left with this final issue. 176 00:09:42.020 --> 00:09:44.540 What about mask mandates? 177 00:09:44.580 --> 00:09:46.860 Where in the law in section 264 178 00:09:46.860 --> 00:09:48.980 of the 1944 Public Health Services Act 179 00:09:48.980 --> 00:09:51.540 do they find their authority? 180 00:09:51.540 --> 00:09:54.420 Well, the CDC thinks it's in the scope 181 00:09:54.420 --> 00:09:56.580 of the word sanitize. 182 00:09:56.580 --> 00:09:58.780 Judge Mazzel says that's a stretch. 183 00:09:58.780 --> 00:10:00.180 She goes back to respect. 184 00:10:00.000 --> 00:10:04.180 dictionaries that were used at the time of the writing of the 1944 law and she 185 00:10:04.180 --> 00:10:09.600 finds that the word for sanitation or to sanitize related to health is simply to 186 00:10:09.600 --> 00:10:16.180 remove the filth or the element that's injurious. The notion that the CDC could 187 00:10:16.180 --> 00:10:22.260 argue that a mask cleans something is pretty far-fetched and not the intent of 188 00:10:22.260 --> 00:10:28.740 the law. Now a mask might trap some droplets but a mask doesn't progressively 189 00:10:28.740 --> 00:10:33.900 and actively sanitize anything. It doesn't clean yet that really is the 190 00:10:33.900 --> 00:10:38.060 CDC's case. They say that the word sanitation enables them to force mask 191 00:10:38.060 --> 00:10:42.740 wearing but for that to be the case wearing a mask would have to actively 192 00:10:42.740 --> 00:10:47.220 destroy the virus but it doesn't. The only thing the CDC can prove is that a 193 00:10:47.220 --> 00:10:52.460 properly fitted and qualified mask can prevent someone who has the virus from 194 00:10:52.460 --> 00:10:58.180 spreading it to others but that isn't sanitation and on that one word in the 195 00:10:58.180 --> 00:11:04.380 1944 act the CDC went about all their mandates. So how did the CDC lawyers 196 00:11:04.380 --> 00:11:09.300 argue that? Well they said that the CDC does have the authority to declare mask 197 00:11:09.300 --> 00:11:13.740 mandates and they did this based on that section 264a. They claim that 198 00:11:13.740 --> 00:11:19.180 sanitation means the promotion of hygiene and the prevention of disease by 199 00:11:19.180 --> 00:11:25.620 maintaining a sanitary condition. Well hand-washing would accomplish that but 200 00:11:25.620 --> 00:11:31.140 not mask wearing. You're not scrubbing away any disease by wearing a mask. The 201 00:11:31.140 --> 00:11:35.420 judge says a clear reading of the law determines whether the CDC or the 202 00:11:35.420 --> 00:11:40.660 Freedom Guys are right. So which is it gonna be? She disagrees with the CDC. They 203 00:11:40.660 --> 00:11:44.620 just don't have the authority. She lays out three reasons that expose that the 204 00:11:44.620 --> 00:11:50.060 CDC's argument that they have all this authority is pretty weak. Number one, the 205 00:11:50.060 --> 00:11:54.700 CDC is stretching way beyond its normal use of the word sanitation. The context 206 00:11:54.700 --> 00:12:00.500 of the authority found in the law is, and I'm quoting, inspection, fumigation, 207 00:12:00.500 --> 00:12:05.580 disinfection, sanitation, and pest extermination. Now these are all terms 208 00:12:05.580 --> 00:12:09.620 that involve identifying, isolating, and destroying the disease itself. It doesn't 209 00:12:09.620 --> 00:12:13.700 mean that the government has the right to go house by house and sanitize people. 210 00:12:13.700 --> 00:12:20.860 It means the government can clean surfaces. Another argument of this word 211 00:12:20.860 --> 00:12:26.980 inside of this argument is that corpus linguistics also shows that the meaning 212 00:12:26.980 --> 00:12:32.820 of the word is straightforward. Of the 507 results for the word sanitation from 213 00:12:32.820 --> 00:12:39.940 1930 to 1944, all the way up into the writing of that law, 95% of the time it 214 00:12:39.940 --> 00:12:45.180 meant to clean. Now 5% of the time it did mean to keep something clean and that's 215 00:12:45.180 --> 00:12:49.220 what the CDC is grabbing for. At the time of the law, the federal government's 216 00:12:49.340 --> 00:12:54.900 issue of quarantine power was limited to individuals and objects that carried the 217 00:12:54.900 --> 00:13:02.620 disease, never to go out to the entire public and try to prevent or clean it. 218 00:13:02.620 --> 00:13:11.780 Number two, sanitization or sanitation is limited to property. It's not applicable 219 00:13:11.780 --> 00:13:17.740 to people. When the 1944 Act refers to people, it's explicit about it. Besides, 220 00:13:17.740 --> 00:13:21.260 in 1944, for each of the words used in the context, they weren't contemplating 221 00:13:21.260 --> 00:13:27.980 doing things to people. You don't fumigate people. You fumigate a contaminated 222 00:13:27.980 --> 00:13:33.060 room. Section A, where the word sanitation is found, just doesn't work. The CDC is 223 00:13:33.060 --> 00:13:36.820 commingling things that are in the later sections where the power to retain 224 00:13:36.820 --> 00:13:40.980 someone who is infected does actually exist, but that's limited to a foreigner 225 00:13:40.980 --> 00:13:46.100 who's infected. Yet, the CDC makes a tortured argument to grab a word from 226 00:13:46.140 --> 00:13:51.260 Section A, which applies to objects and property, and apply it to a later section 227 00:13:51.260 --> 00:13:56.020 to impose a restriction on people. You just can't read the law that way. You 228 00:13:56.020 --> 00:14:01.300 can't pick and choose words and place them wherever you want. The CDC used this 229 00:14:01.300 --> 00:14:05.740 illogical random approach to conclude that wearing a mask is a condition of 230 00:14:05.740 --> 00:14:12.980 passing a checkpoint for your travels. So, you were prevented from free passage. 231 00:14:13.020 --> 00:14:19.300 You can only travel if the CDC approved of your precaution. The only problem is 232 00:14:19.300 --> 00:14:23.900 that's not a power granted to the CDC, unless it's directed at a specific 233 00:14:23.900 --> 00:14:28.700 person who's infected. And then, it only applies to foreigners making their way 234 00:14:28.700 --> 00:14:33.220 into the United States. It's certainly not a part of Section 264A, where the 235 00:14:33.220 --> 00:14:39.620 CDC is placing all of their legal case. The CDC is arguing that it can detain 236 00:14:39.700 --> 00:14:43.460 you if you don't wear a mask, and they even promulgated enlisting the support 237 00:14:43.460 --> 00:14:47.220 of all the workers, the local government, airport employees, flight attendants, and 238 00:14:47.220 --> 00:14:52.580 even ride-sharing drivers to enforce the removal measures. But, detention and 239 00:14:52.580 --> 00:14:58.900 removals? Not in Section A. The CDC just makes up its authority, and it just 240 00:14:58.900 --> 00:15:01.860 doesn't have the power. 241 00:15:00.000 --> 00:15:02.780 or to apply to all travelers, regardless of their origin 242 00:15:02.780 --> 00:15:06.460 or destination, a detention or a quarantine mechanism. 243 00:15:06.460 --> 00:15:08.120 Not in there. 244 00:15:08.120 --> 00:15:09.900 If you don't wear the mask, you're 245 00:15:09.900 --> 00:15:11.820 going to get kicked off the plane. 246 00:15:11.820 --> 00:15:14.140 That's a detention mechanism. 247 00:15:14.140 --> 00:15:17.380 So number two, the law states that sanitation only 248 00:15:17.380 --> 00:15:19.700 applies to property and objects, not people. 249 00:15:19.700 --> 00:15:21.940 And finally, she shoots down the CDC's attempt 250 00:15:21.940 --> 00:15:25.060 to win on a concept called the Chevron deference. 251 00:15:25.060 --> 00:15:27.780 The CDC argues that even if they are wrong 252 00:15:27.780 --> 00:15:29.700 on their understanding of the law, 253 00:15:29.700 --> 00:15:31.940 that their interpretation should be adopted anyway, 254 00:15:31.940 --> 00:15:35.220 since that's the way the CDC interpret it. 255 00:15:35.220 --> 00:15:37.940 Now, if that ain't circular logic, my goodness, 256 00:15:37.940 --> 00:15:40.140 gracious sakes, a lot of these guys are crazy. 257 00:15:40.140 --> 00:15:44.380 Anyway, the judge says the statute is not ambiguous. 258 00:15:44.380 --> 00:15:48.420 Congress addressed what the CDC can do and what it cannot do. 259 00:15:48.420 --> 00:15:51.000 It cannot enact preventative measures 260 00:15:51.000 --> 00:15:54.580 that interfere with travel upon the entire population, not 261 00:15:54.580 --> 00:15:55.460 their authority. 262 00:15:55.460 --> 00:15:58.180 And the CDC's argument isn't even reasonable. 263 00:15:58.180 --> 00:16:00.980 They take a word, cut it, and paste it 264 00:16:00.980 --> 00:16:04.220 to another location in the law to make their case. 265 00:16:04.220 --> 00:16:07.020 The CDC is basically saying that they can do something 266 00:16:07.020 --> 00:16:10.820 far-reaching, even if Congress said that they can't. 267 00:16:10.820 --> 00:16:16.200 But Congress, in the 1944 act, does not give them that power. 268 00:16:16.200 --> 00:16:17.820 If it meant to give them that power, 269 00:16:17.820 --> 00:16:19.960 they would have clearly done so, says the judge, 270 00:16:19.960 --> 00:16:23.620 especially in a matter with vast economic and political impact. 271 00:16:23.620 --> 00:16:27.380 So the CDC's argument that they should be given deference 272 00:16:27.380 --> 00:16:29.580 just does not hold water. 273 00:16:29.580 --> 00:16:31.620 In summary, the CDC was basically 274 00:16:31.620 --> 00:16:35.500 saying they had enormous power and enormous authority. 275 00:16:35.500 --> 00:16:39.100 And they said that they got that authority from a strained use 276 00:16:39.100 --> 00:16:42.020 of the word sanitation. 277 00:16:42.020 --> 00:16:45.220 They basically said that sanitation gave them 278 00:16:45.220 --> 00:16:48.900 the ability to apply measures for preserving and promoting 279 00:16:48.900 --> 00:16:50.180 public health. 280 00:16:50.180 --> 00:16:52.900 Now, that is crazy lane. 281 00:16:52.900 --> 00:16:55.820 The judge provides examples of how vast this authority could 282 00:16:55.820 --> 00:17:00.140 reach if the CDC did, in fact, have the kind of police power 283 00:17:00.140 --> 00:17:02.860 that it believes it possesses. 284 00:17:02.860 --> 00:17:05.540 Thankfully, the 1944 law does not 285 00:17:05.540 --> 00:17:08.859 give the CDC that vast authority and power. 286 00:17:08.859 --> 00:17:12.220 So round one goes to the Freedom Guys. 287 00:17:12.220 --> 00:17:15.200 They claimed the mask mandate exceeds the CDC's authority 288 00:17:15.200 --> 00:17:16.740 under the Public Health Services Act. 289 00:17:16.740 --> 00:17:19.619 And for the reasons we just discussed above, 290 00:17:19.619 --> 00:17:21.260 the judge agreed. 291 00:17:21.260 --> 00:17:23.420 So that alone would be the end of the mask mandate. 292 00:17:23.420 --> 00:17:24.780 But there's more. 293 00:17:24.780 --> 00:17:27.859 The second claim made by the Freedom Guys 294 00:17:27.859 --> 00:17:30.220 is that the mask mandate improperly 295 00:17:30.220 --> 00:17:35.340 invoked the good cause exception to notice and comment 296 00:17:35.340 --> 00:17:36.580 rulemaking. 297 00:17:36.580 --> 00:17:38.740 In other words, anytime an agency like the CDC 298 00:17:38.740 --> 00:17:41.260 makes a rule, they have to let the public weigh in. 299 00:17:41.260 --> 00:17:42.020 That makes sense. 300 00:17:42.020 --> 00:17:44.180 The public includes whatever experts the public 301 00:17:44.180 --> 00:17:45.660 wants to bring to the table. 302 00:17:45.660 --> 00:17:48.260 They're supposed to be given an open forum whereby 303 00:17:48.260 --> 00:17:50.420 they can make comments, make arguments against it, 304 00:17:50.420 --> 00:17:52.540 submit written data. 305 00:17:52.540 --> 00:17:54.980 All this must go into the public record on the rule 306 00:17:54.980 --> 00:17:57.420 before the rule becomes legally binding. 307 00:17:57.420 --> 00:18:00.100 It's actually a requirement of the Administrative Procedure 308 00:18:00.100 --> 00:18:01.020 Act. 309 00:18:01.020 --> 00:18:04.040 The CDC should have published a notice 310 00:18:04.040 --> 00:18:06.860 and given a normal period of time for the public 311 00:18:06.860 --> 00:18:08.820 to have their say. 312 00:18:08.820 --> 00:18:11.220 The judge informs us that the Administrative Procedure Act 313 00:18:11.220 --> 00:18:13.420 is designed to give the public a chance 314 00:18:13.420 --> 00:18:15.700 to criticize the potential action before that action's 315 00:18:15.700 --> 00:18:18.120 embedded in our society. 316 00:18:18.120 --> 00:18:19.620 The notice and comment period's also 317 00:18:19.620 --> 00:18:23.700 designed to provide a mechanism to constrain the exercise 318 00:18:23.700 --> 00:18:25.300 of legislative power. 319 00:18:25.300 --> 00:18:27.420 It attempts to insert some accountability 320 00:18:27.420 --> 00:18:33.340 to the otherwise unaccountable rulemaking process. 321 00:18:33.340 --> 00:18:35.980 The CDC said it was too urgent of a matter 322 00:18:35.980 --> 00:18:38.460 to give the public their say. 323 00:18:38.460 --> 00:18:39.940 Man, they're arrogant. 324 00:18:39.940 --> 00:18:43.100 But the CDC failed to articulate their reasoning, 325 00:18:43.100 --> 00:18:46.500 and they failed to connect their reasoning to a finding in fact. 326 00:18:46.500 --> 00:18:48.660 They had no good cause. 327 00:18:48.660 --> 00:18:52.180 They just ran rampant, including establishing fines and penalties 328 00:18:52.180 --> 00:18:53.820 for non-mask wearers. 329 00:18:53.820 --> 00:18:56.420 And this was not a harmless error. 330 00:18:56.420 --> 00:18:58.580 The CDC knew what they were doing. 331 00:18:58.580 --> 00:19:00.580 They apparently didn't want to allow the public 332 00:19:00.580 --> 00:19:02.380 to make their arguments, and they apparently 333 00:19:02.380 --> 00:19:04.540 did not want to be responsible to post 334 00:19:04.540 --> 00:19:07.740 on their website the comments and the arguments. 335 00:19:07.740 --> 00:19:10.740 Now, in my opinion, it's not the judge, but in my opinion, 336 00:19:10.740 --> 00:19:13.940 the CDC did not want the numerous studies 337 00:19:13.940 --> 00:19:16.540 from around the world that claimed mask wearing was not 338 00:19:16.540 --> 00:19:17.700 effective. 339 00:19:17.700 --> 00:19:20.140 They didn't want the well-respected doctors 340 00:19:20.140 --> 00:19:24.500 and health institutions' findings to be recorded. 341 00:19:24.500 --> 00:19:26.020 But hey, that's just me. 342 00:19:26.020 --> 00:19:27.620 Back to the judge's ruling. 343 00:19:27.620 --> 00:19:29.340 The whole point of notice and comment 344 00:19:29.340 --> 00:19:34.100 is to provide balance and rein in an agency like the CDC. 345 00:19:34.100 --> 00:19:37.140 The CDC clearly did not comply with the requirement 346 00:19:37.140 --> 00:19:39.140 for notice and comment. 347 00:19:39.140 --> 00:19:42.340 So round two goes to the Freedom Guys. 348 00:19:42.340 --> 00:19:44.420 Since the notice and comment was not complied with, 349 00:19:44.420 --> 00:19:47.660 and case law shows that when that fundamental violation is 350 00:19:47.660 --> 00:19:50.260 made by an agency, that the rule of the agency 351 00:19:50.260 --> 00:19:52.740 should be terminated. 352 00:19:52.740 --> 00:19:53.820 That's the law. 353 00:19:53.820 --> 00:19:57.900 The judge, for this claim alone, sets aside the mask mandate. 354 00:19:57.900 --> 00:20:00.580 So far, we've got two claims. 355 00:20:00.000 --> 00:20:02.200 the Freedom Guys, and they've won both. 356 00:20:02.200 --> 00:20:04.260 The CDC did not have the authority 357 00:20:04.260 --> 00:20:05.620 to issue the mask mandate, 358 00:20:05.620 --> 00:20:09.440 and the CDC violated the notice and comment period, 359 00:20:09.440 --> 00:20:11.200 and that's just provable. 360 00:20:11.200 --> 00:20:12.740 But there's more. 361 00:20:12.740 --> 00:20:14.640 The third claim by the Freedom Guys 362 00:20:14.640 --> 00:20:17.760 was that the mask mandate is arbitrary and capricious 363 00:20:17.760 --> 00:20:22.000 because the CDC failed to adequately explain 364 00:20:22.000 --> 00:20:23.640 their rationale. 365 00:20:23.640 --> 00:20:27.200 The judge agreed that the CDC did not adequately explain 366 00:20:27.200 --> 00:20:29.300 its reasons for the mask mandate. 367 00:20:29.300 --> 00:20:32.180 The CDC didn't explain why a cloth mask was useful, 368 00:20:32.180 --> 00:20:33.340 for example. 369 00:20:33.340 --> 00:20:36.180 The CDC didn't explain why temperature checks 370 00:20:36.180 --> 00:20:39.740 and testing was not worthwhile or sufficient. 371 00:20:39.740 --> 00:20:41.900 They didn't explain why occupancy limits 372 00:20:41.900 --> 00:20:43.380 would not be effective. 373 00:20:43.380 --> 00:20:46.420 In fact, the mask mandate provides no explanation 374 00:20:46.420 --> 00:20:50.400 for the CDC's choices at all. 375 00:20:50.400 --> 00:20:52.080 The law does not require the CDC 376 00:20:52.080 --> 00:20:54.980 to evaluate every alternative known to man, 377 00:20:54.980 --> 00:20:58.180 but it does require that it consider 378 00:20:58.180 --> 00:21:02.620 and explain its rejection of reasonably obvious 379 00:21:02.620 --> 00:21:05.180 and viable alternatives. 380 00:21:05.180 --> 00:21:07.140 The judge says that rather than explain 381 00:21:07.140 --> 00:21:09.780 why those alternatives were not effective, 382 00:21:09.780 --> 00:21:13.660 the CDC was mired in inconsistent thought and behavior. 383 00:21:13.660 --> 00:21:15.560 It said that, for example, 384 00:21:15.560 --> 00:21:19.100 that universal masking reduces transmission, 385 00:21:19.100 --> 00:21:21.180 but it allowed exceptions for eating, 386 00:21:21.180 --> 00:21:23.740 drinking, or taking medication. 387 00:21:23.740 --> 00:21:25.620 This should have been explained. 388 00:21:25.620 --> 00:21:27.700 It allowed mask exclusions for children 389 00:21:27.700 --> 00:21:29.220 under the age of two. 390 00:21:29.220 --> 00:21:31.500 That's not masking entirely. 391 00:21:31.500 --> 00:21:32.540 So on the one hand, 392 00:21:32.540 --> 00:21:34.700 they say that only universal masking is effective, 393 00:21:34.700 --> 00:21:35.540 and on the other, 394 00:21:35.540 --> 00:21:37.960 they give no explanation for this exception. 395 00:21:37.960 --> 00:21:41.340 The claim is that they're being arbitrary. 396 00:21:41.340 --> 00:21:44.460 Arbitrary is synonymous with illogical, 397 00:21:44.460 --> 00:21:46.540 haphazard, and random. 398 00:21:46.540 --> 00:21:48.060 They just don't explain why a two-year-old 399 00:21:48.060 --> 00:21:49.740 is less likely to transmit the disease 400 00:21:49.740 --> 00:21:51.280 than a 62-year-old. 401 00:21:51.280 --> 00:21:52.420 That's arbitrary. 402 00:21:52.420 --> 00:21:53.840 They simply made their directives, 403 00:21:53.840 --> 00:21:55.840 but did not comply with the requirement 404 00:21:55.840 --> 00:21:57.560 to explain themselves. 405 00:21:58.420 --> 00:21:59.360 In fact, there's no rational connection 406 00:21:59.360 --> 00:22:01.480 between the facts that were discovered 407 00:22:01.480 --> 00:22:04.680 and the choices that the CDC made. 408 00:22:04.680 --> 00:22:06.940 The judge explains that even if you agree 409 00:22:06.940 --> 00:22:10.520 that the CDC should be given deference on these matters 410 00:22:10.520 --> 00:22:12.880 because of their experience, 411 00:22:12.880 --> 00:22:17.440 it still must provide solid rationale 412 00:22:17.440 --> 00:22:21.320 on why it found its decision persuasive. 413 00:22:21.320 --> 00:22:25.960 It still must explain what their experience is on the issue 414 00:22:25.960 --> 00:22:29.140 and how that knowledge informed the decision. 415 00:22:30.560 --> 00:22:34.360 And the judge says the CDC did not do that. 416 00:22:34.360 --> 00:22:37.880 It did not explain why a two-year-old got an exception 417 00:22:37.880 --> 00:22:40.240 and a three-year-old did not. 418 00:22:40.240 --> 00:22:43.060 That's arbitrary and capricious. 419 00:22:43.060 --> 00:22:46.460 No study, no science, no explanation at all, 420 00:22:46.460 --> 00:22:47.960 just a cutoff. 421 00:22:47.960 --> 00:22:49.440 Somehow, automatically, 422 00:22:49.440 --> 00:22:51.240 between two and three years of age, 423 00:22:51.240 --> 00:22:52.880 you don't need a mask. 424 00:22:52.880 --> 00:22:55.360 Capricious also means unpredictable, 425 00:22:55.360 --> 00:22:57.560 erratic, or unreliable. 426 00:22:57.560 --> 00:23:00.760 The point of the law is that by allowing public debate 427 00:23:00.760 --> 00:23:02.320 to inform the agency 428 00:23:02.320 --> 00:23:05.720 and by properly explaining the CDC's case, 429 00:23:05.720 --> 00:23:10.240 the CDC could make the rule trustworthy, reliable. 430 00:23:10.240 --> 00:23:12.160 The law requires that the agency, 431 00:23:12.160 --> 00:23:13.880 and in this case, that's the CDC, 432 00:23:13.880 --> 00:23:17.160 explain why it acted the way that it did. 433 00:23:17.160 --> 00:23:18.800 So the judge goes on to explain 434 00:23:18.800 --> 00:23:22.380 why a solid rational explanation for a rule 435 00:23:22.420 --> 00:23:24.120 is the law of the land. 436 00:23:24.120 --> 00:23:27.380 When an agency, like the CDC, gets sued, 437 00:23:27.380 --> 00:23:29.380 in order for the rule to hold up, 438 00:23:29.380 --> 00:23:30.640 whatever that rule is, 439 00:23:30.640 --> 00:23:32.680 it has to be able to explain enough detail 440 00:23:32.680 --> 00:23:36.180 to the reviewing court that the court can determine 441 00:23:36.180 --> 00:23:37.460 that the government agency 442 00:23:37.460 --> 00:23:40.500 used its discretion appropriately. 443 00:23:40.500 --> 00:23:44.520 It's a protection mechanism for rules to be fair. 444 00:23:44.520 --> 00:23:45.840 Rules are, after all, put in place 445 00:23:45.840 --> 00:23:48.180 by people who are not elected. 446 00:23:48.180 --> 00:23:49.980 If a rule's put in place properly, 447 00:23:49.980 --> 00:23:52.060 the court can look at all their justifications 448 00:23:52.060 --> 00:23:54.300 on the alternative approaches to the rule 449 00:23:54.300 --> 00:23:56.080 and they can make their case. 450 00:23:56.080 --> 00:23:58.260 But the CDC, according to the judge, 451 00:23:58.260 --> 00:24:01.620 didn't even try to explain. 452 00:24:02.580 --> 00:24:04.380 The judge ruled that since the CDC 453 00:24:04.380 --> 00:24:07.060 did not link the facts to their decisions, 454 00:24:07.060 --> 00:24:11.340 the decision is arbitrary and capricious. 455 00:24:11.340 --> 00:24:15.020 So the mask mandate is set aside and gets remanded, 456 00:24:15.020 --> 00:24:18.140 or that means to be sent back to the CDC. 457 00:24:18.140 --> 00:24:21.260 So round three goes to the Freedom Guys. 458 00:24:21.260 --> 00:24:23.300 The mask mandate is proven to be without authority, 459 00:24:23.300 --> 00:24:25.940 round one, without proper notice or comment, 460 00:24:25.940 --> 00:24:28.000 round two, and now, round three, 461 00:24:28.000 --> 00:24:32.620 it's objectively shown to be arbitrary and capricious. 462 00:24:32.620 --> 00:24:34.060 Could there be more? 463 00:24:34.060 --> 00:24:37.420 Yes, the final claim by the Freedom Guys 464 00:24:37.420 --> 00:24:40.440 is that the mask mandate should be vacated 465 00:24:40.440 --> 00:24:44.140 for violating the Administrative Procedure Act. 466 00:24:44.140 --> 00:24:47.460 It's a clear law and we know what it says. 467 00:24:47.460 --> 00:24:49.700 The CDC tried to argue that even if the mask mandate 468 00:24:49.700 --> 00:24:54.140 is ruled unlawful, they knew they were on weak ground here, 469 00:24:54.140 --> 00:24:58.300 that it only applied to Anna Daza and Sarah Pope 470 00:24:58.300 --> 00:25:00.740 and the members of the Health Freedom Defense Fund. 471 00:25:00.000 --> 00:25:05.280 But the Administrative Procedure Act requires that the courts hold unlawful and set-aside 472 00:25:05.280 --> 00:25:10.880 agency action if they violate the APA or if they exceed the agency's authority for everyone. 473 00:25:10.880 --> 00:25:16.500 The courts have a long history of authorizing that the whole rule be thrown out if either 474 00:25:16.500 --> 00:25:18.960 of those two violations occur. 475 00:25:18.960 --> 00:25:24.400 It doesn't just apply to the two people who had the fortitude to levy a lawsuit or to 476 00:25:24.400 --> 00:25:27.040 the members of the defense fund who took it on. 477 00:25:27.040 --> 00:25:30.840 It applies to everyone else who's impacted by the unlawful rule. 478 00:25:30.840 --> 00:25:36.400 Besides, the judge goes on and explains, how would you know if you're a ride-sharing driver 479 00:25:36.400 --> 00:25:38.740 that the plaintiff is legit? 480 00:25:38.740 --> 00:25:42.960 Everybody just comes into the ride and says, hey, I'm coming into the car and I'm not wearing 481 00:25:42.960 --> 00:25:43.960 a mask. 482 00:25:43.960 --> 00:25:46.400 I'm Sarah Pope and I don't have to wear a mask. 483 00:25:46.400 --> 00:25:50.120 So the judge shows how ridiculous it would be to just overturn the national rule for 484 00:25:50.120 --> 00:25:54.400 two people or for two people plus the members of the defense fund. 485 00:25:54.400 --> 00:26:01.560 So, universal relief from the rule is the only fair remedy and the case law is pretty 486 00:26:01.560 --> 00:26:06.400 clear on that, especially when the plaintiffs are from all over the place, which is the 487 00:26:06.400 --> 00:26:11.160 case of the aggregated freedom guys. 488 00:26:11.160 --> 00:26:15.160 Plain and simple, if you violate the Administrative Procedure Act, the appropriate remedy is vacator 489 00:26:15.160 --> 00:26:17.760 or nullification of the rule. 490 00:26:17.760 --> 00:26:23.160 There are abundant examples of other rules being thrown out in totality for violating 491 00:26:23.200 --> 00:26:25.160 the Administrative Procedure Act. 492 00:26:25.160 --> 00:26:29.800 And for the same violations the CDC committed, both for the lack of notice and comment and 493 00:26:29.800 --> 00:26:36.120 failure to comply with statutory requirements, the CDC just bulldozed right past those. 494 00:26:36.120 --> 00:26:42.520 So, complete nullification of the rule is the appropriate remedy for the plaintiff's 495 00:26:42.520 --> 00:26:44.160 injury. 496 00:26:44.160 --> 00:26:45.920 Boom! 497 00:26:45.920 --> 00:26:48.800 Round four goes to the freedom guys. 498 00:26:48.800 --> 00:26:53.160 The order was applicable to the country, so when the mask mandate was smacked down 499 00:26:53.160 --> 00:26:58.880 by a federal judge, it applies to the whole U.S. of A. 500 00:26:58.880 --> 00:27:01.600 The CDC exceeded their authority. 501 00:27:01.600 --> 00:27:06.280 The CDC did not allow for proper notice and comment. 502 00:27:06.280 --> 00:27:10.720 The CDC did not properly explain its decisions. 503 00:27:10.720 --> 00:27:14.280 The CDC acted unlawfully. 504 00:27:14.280 --> 00:27:16.000 Bada boom, bada bang. 505 00:27:16.000 --> 00:27:20.400 So, it's ordered April 18, 2022. 506 00:27:20.400 --> 00:27:24.400 Catherine Kimball Mizell, United States District Judge. 507 00:27:24.400 --> 00:27:29.600 So the freedom guys had a really good day, but the CDC should have had a more humble 508 00:27:29.600 --> 00:27:32.280 view of their role to begin with. 509 00:27:32.280 --> 00:27:36.680 They should have encouraged and openly discussed alternative views. 510 00:27:36.680 --> 00:27:38.600 Let those ruminate. 511 00:27:38.600 --> 00:27:44.880 They should have made the comment and notice period a transparent discovery time. 512 00:27:44.880 --> 00:27:47.400 They should have never violated the law. 513 00:27:47.400 --> 00:27:52.200 They should never have had a national mask mandate. 514 00:27:52.200 --> 00:27:58.240 But thank God, there are still rules and some legal thought in place that provide some safeguards. 515 00:27:58.240 --> 00:28:01.240 And thank God for a judge who thinks clearly. 516 00:28:01.240 --> 00:28:02.240 To your freedom. 517 00:28:02.240 --> 00:28:03.240 God bless. 518 00:28:03.240 --> 00:28:04.240 Hi, I'm David Farah. 519 00:28:04.240 --> 00:28:10.320 Thank you for listening to my dad's podcast, The Barry Farah Show, Culture Shift. 520 00:28:10.320 --> 00:28:13.880 Click subscribe now to be sure you don't miss an episode. 521 00:28:13.880 --> 00:28:18.520 Share this podcast with your friends on social media and give The Barry Farah Show your five 522 00:28:18.520 --> 00:28:19.920 star rating. 523 00:28:19.920 --> 00:28:20.640 See you next time.