Today we have some fun. We look at the national de-masking on trains, planes, and automobiles.
We'll look at the logic behind the ruling next.
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Hey, welcome back to The Barry Farrow Show.
Today we look at the de-masking of trains, planes, and automobiles.
It's a win for freedom and logic.
You know, whether you travel or not, you've no doubt heard that the mask mandate has been quashed
by a federal judge in the Tampa District.
The White House said the ruling was disappointing.
The Justice Department said they'll appeal.
Passengers from Spain to Atlanta heard the announcement in mid-flight
and they whistled with loud, spontaneous applause.
Flight attendants were euphoric.
The left-wing media accused the judge of misapplying the law.
The New York Post says that the left's attacks show that they are in fact the ones who are ignorant
and do not understand the law.
Now, if the Department of Justice really does follow through with an appeal, will it hold up?
Well, I don't think so. Let's have some fun.
What I'm going to do is just go through the judge's 59-page ruling and collapse it to six.
I'm going to paraphrase some things, but I'm going to try to stay true to what the judge actually said.
You can decide for yourself, but I think it's pretty clear on four counts
that the judge ruled in accordance with the law.
And thank God.
So, Judge Catherine Mizell is a young federal judge.
She serves as United States District Judge in the Tampa District.
She ruled that the mask mandate was not lawful.
Judge Mizell was appointed to her post when she was 33 in 2020.
The case at hand was brought by two women and the Health Freedom Defense Fund back in July 2021.
The women, Anna Daza and Sarah Pope, sued the CDC and Joseph Biden, the POTUS, and other health officials
claiming the Administrative Procedure Act was unlawfully violated.
And in my opinion, she wrote a fantastic 59-page opinion.
It's logical and compelling.
We'll summarize it here.
So, first, the judge summarizes the issue at hand.
Federal law required that people wear masks in airports, trains, stations, on airplanes, buses,
and most other means of transportation.
And if you failed to comply, you could go to jail, be fined, but at a minimum,
be removed from your seat on the bus, the train, or the plane.
A form of quarantine.
At the end of the day, she said the mask mandate violated the authority
and the process that the CDC is required to go through for rulemaking.
The process is outlined in a law called the Administrative Procedure Act.
It requires the government to obey certain transparency laws and allow for the public to weigh in.
How about them apples?
This act was violated, among other things, which we'll get to.
The judge states that the obvious, certain obvious things about the virus.
It continued to spread, even though the government engaged in unprecedented restrictions
on freedom of movement and basic freedoms in general.
So after Biden took office, he issued a mask mandate for all forms of transportation,
everything they could reach, planes, trains, buses, boats, subways,
and all the terminals and all the public spaces that would lead up to the terminals.
This was in January and February of 2021.
Now at this time, the CDC admitted that it didn't allow for public comment.
It said the issue was too urgent to allow others with other points of view to weigh in.
At the same time, the CDC declared itself exempt from being guided by the APA to begin with.
So back in February 2021, the CDC had laid out what they thought are acceptable masks.
They said that the masks can be homemade.
They can be a solid piece of material.
The judge said the CDC in their mandate did not differentiate on the type of mask
that's actually effective at blocking transmission.
The CDC even included ride-sharing vehicles in their mandate,
and any marina, seaport, subway station, bus, terminal, aircraft, trains,
and any other means of transport.
In other words, the CDC declared itself the de facto ruler over all those public transportation hubs.
And they said that the operators, the people working in those areas,
had to use a best-effort approach to enforce the mask mandate, or they'd be violating the law.
Now the CDC actually has police power.
And with this mask mandate, they declared themselves the sheriff,
and all those employees of all those transport-related companies and organizations
all across the country,
People were their deputies.
So the two plaintiffs, Daza and Pope,
have medical exemptions.
And they should have been provided some grace
and leniency from the airlines, but they weren't.
The Health Freedom Defense Fund took up their case.
That fund opposes laws that force individuals
to submit to medical products, procedures,
or devices against their will.
So they sued Biden, the Secretary of Health,
the CDC director, and the director of the CDC's
Division of Global Migration and Quarantine.
So to make this easier to refer to,
and to disclose my personal view on the matter,
I'm gonna call the plaintiff and the legal team
the Freedom Guys.
They asked for a summary judgment.
This is an order that can only be given
if there's no dispute to any material fact.
And in that instance, it's something
that you're entitled to, it's just a matter of law.
But it's hard to get.
There's gotta be no ambiguity.
Now, in matters related to the Administrative Procedure Act,
the district judge, by law, sits as the appellate tribunal.
He or she has the power to rule
in accordance with that law.
It's a clear law designed to curb the power
of unelected rule makers.
So basically, the law says, if an agency, like the CDC,
does not follow the Administrative Procedure Act,
then the judge can step in and give relief
to the plaintiff by overturning
whatever that order or rule was.
So in this case, the mask mandate can be legally overturned
by one federal judge at the summary judgment level
if the law is perfectly clear.
So the legal team for the Freedom Guys
had originally also sued the President of the United States,
since he is the one who had actually issued
the executive order to begin with on the mask mandate.
But they dropped their challenge against Biden
to make it easier to win the summary judgment
against the CDC.
This also removed the White House as a defendant,
so they had one less defendant to worry about.
That didn't mean that they believed Biden was innocent.
It's just a legal maneuver to streamline the case.
So what this did is enabled the Freedom Guys
to go after the CDC like a laser.
And they went after them with four claims
that they believed they could win.
The first claim by the Freedom Guys against the CDC
was that the mask mandate itself
exceeds the authority of the CDC.
They just don't have that authority.
The CDC is supposed to only possess the explicit authority
that they were given by Congress.
So the CDC had claimed that they had authority
under the Public Health Services Act
to force people to wear masks.
The CDC was using a section of the 1944 Act
and it's section 264 and has a subsection,
it's paragraph A.
Now in that paragraph,
it says that they have the power to inspect, fumigate,
disinfect, sanitize and exterminate pests,
destroy animals or articles that are found to be infected.
So where in there is the power to mandate masks?
Their lawyers said that in the word sanitize or sanitation
is where they get all of their power.
Really?
So the judge explains that the CDC
can in fact apprehend or detain individuals
when they're coming to the United States
from another country.
But they can only do that
when they have a very strong good faith belief
that the person has the disease.
Can't just do it to everybody.
The 1944 Public Health Service Act
is limited to quarantining infected individuals
and prohibiting the import of animals
known to transmit the disease.
So the judge said, as a matter of fact, prior to 2020,
that this has been rarely invoked.
And since 2021, the CDC has used that section
of the Public Health Service Act
to grant itself the power to shut down
the cruise ship industry,
interfere with landlord's ability to evict tenants
who didn't pay their rent
and require people to wear masks.
Now this isn't the only case
where the CDC has been ruled against.
The CDC overstepped their authority previously.
The judge refreshes our recent memory
that before this case,
the courts had already ruled
that the CDC exceeded its authority
on the shutting down of the cruise ship industry
and interfering with landlord's rights
to conduct their business
in accordance with their business model.
So the judge is left with this final issue.
What about mask mandates?
Where in the law in section 264
of the 1944 Public Health Services Act
do they find their authority?
Well, the CDC thinks it's in the scope
of the word sanitize.
Judge Mazzel says that's a stretch.
She goes back to respect.
dictionaries that were used at the time of the writing of the 1944 law and she
finds that the word for sanitation or to sanitize related to health is simply to
remove the filth or the element that's injurious. The notion that the CDC could
argue that a mask cleans something is pretty far-fetched and not the intent of
the law. Now a mask might trap some droplets but a mask doesn't progressively
and actively sanitize anything. It doesn't clean yet that really is the
CDC's case. They say that the word sanitation enables them to force mask
wearing but for that to be the case wearing a mask would have to actively
destroy the virus but it doesn't. The only thing the CDC can prove is that a
properly fitted and qualified mask can prevent someone who has the virus from
spreading it to others but that isn't sanitation and on that one word in the
1944 act the CDC went about all their mandates. So how did the CDC lawyers
argue that? Well they said that the CDC does have the authority to declare mask
mandates and they did this based on that section 264a. They claim that
sanitation means the promotion of hygiene and the prevention of disease by
maintaining a sanitary condition. Well hand-washing would accomplish that but
not mask wearing. You're not scrubbing away any disease by wearing a mask. The
judge says a clear reading of the law determines whether the CDC or the
Freedom Guys are right. So which is it gonna be? She disagrees with the CDC. They
just don't have the authority. She lays out three reasons that expose that the
CDC's argument that they have all this authority is pretty weak. Number one, the
CDC is stretching way beyond its normal use of the word sanitation. The context
of the authority found in the law is, and I'm quoting, inspection, fumigation,
disinfection, sanitation, and pest extermination. Now these are all terms
that involve identifying, isolating, and destroying the disease itself. It doesn't
mean that the government has the right to go house by house and sanitize people.
It means the government can clean surfaces. Another argument of this word
inside of this argument is that corpus linguistics also shows that the meaning
of the word is straightforward. Of the 507 results for the word sanitation from
1930 to 1944, all the way up into the writing of that law, 95% of the time it
meant to clean. Now 5% of the time it did mean to keep something clean and that's
what the CDC is grabbing for. At the time of the law, the federal government's
issue of quarantine power was limited to individuals and objects that carried the
disease, never to go out to the entire public and try to prevent or clean it.
Number two, sanitization or sanitation is limited to property. It's not applicable
to people. When the 1944 Act refers to people, it's explicit about it. Besides,
in 1944, for each of the words used in the context, they weren't contemplating
doing things to people. You don't fumigate people. You fumigate a contaminated
room. Section A, where the word sanitation is found, just doesn't work. The CDC is
commingling things that are in the later sections where the power to retain
someone who is infected does actually exist, but that's limited to a foreigner
who's infected. Yet, the CDC makes a tortured argument to grab a word from
Section A, which applies to objects and property, and apply it to a later section
to impose a restriction on people. You just can't read the law that way. You
can't pick and choose words and place them wherever you want. The CDC used this
illogical random approach to conclude that wearing a mask is a condition of
passing a checkpoint for your travels. So, you were prevented from free passage.
You can only travel if the CDC approved of your precaution. The only problem is
that's not a power granted to the CDC, unless it's directed at a specific
person who's infected. And then, it only applies to foreigners making their way
into the United States. It's certainly not a part of Section 264A, where the
CDC is placing all of their legal case. The CDC is arguing that it can detain
you if you don't wear a mask, and they even promulgated enlisting the support
of all the workers, the local government, airport employees, flight attendants, and
even ride-sharing drivers to enforce the removal measures. But, detention and
removals? Not in Section A. The CDC just makes up its authority, and it just
doesn't have the power.
or to apply to all travelers, regardless of their origin
or destination, a detention or a quarantine mechanism.
Not in there.
If you don't wear the mask, you're
going to get kicked off the plane.
That's a detention mechanism.
So number two, the law states that sanitation only
applies to property and objects, not people.
And finally, she shoots down the CDC's attempt
to win on a concept called the Chevron deference.
The CDC argues that even if they are wrong
on their understanding of the law,
that their interpretation should be adopted anyway,
since that's the way the CDC interpret it.
Now, if that ain't circular logic, my goodness,
gracious sakes, a lot of these guys are crazy.
Anyway, the judge says the statute is not ambiguous.
Congress addressed what the CDC can do and what it cannot do.
It cannot enact preventative measures
that interfere with travel upon the entire population, not
their authority.
And the CDC's argument isn't even reasonable.
They take a word, cut it, and paste it
to another location in the law to make their case.
The CDC is basically saying that they can do something
far-reaching, even if Congress said that they can't.
But Congress, in the 1944 act, does not give them that power.
If it meant to give them that power,
they would have clearly done so, says the judge,
especially in a matter with vast economic and political impact.
So the CDC's argument that they should be given deference
just does not hold water.
In summary, the CDC was basically
saying they had enormous power and enormous authority.
And they said that they got that authority from a strained use
of the word sanitation.
They basically said that sanitation gave them
the ability to apply measures for preserving and promoting
public health.
Now, that is crazy lane.
The judge provides examples of how vast this authority could
reach if the CDC did, in fact, have the kind of police power
that it believes it possesses.
Thankfully, the 1944 law does not
give the CDC that vast authority and power.
So round one goes to the Freedom Guys.
They claimed the mask mandate exceeds the CDC's authority
under the Public Health Services Act.
And for the reasons we just discussed above,
the judge agreed.
So that alone would be the end of the mask mandate.
But there's more.
The second claim made by the Freedom Guys
is that the mask mandate improperly
invoked the good cause exception to notice and comment
rulemaking.
In other words, anytime an agency like the CDC
makes a rule, they have to let the public weigh in.
That makes sense.
The public includes whatever experts the public
wants to bring to the table.
They're supposed to be given an open forum whereby
they can make comments, make arguments against it,
submit written data.
All this must go into the public record on the rule
before the rule becomes legally binding.
It's actually a requirement of the Administrative Procedure
Act.
The CDC should have published a notice
and given a normal period of time for the public
to have their say.
The judge informs us that the Administrative Procedure Act
is designed to give the public a chance
to criticize the potential action before that action's
embedded in our society.
The notice and comment period's also
designed to provide a mechanism to constrain the exercise
of legislative power.
It attempts to insert some accountability
to the otherwise unaccountable rulemaking process.
The CDC said it was too urgent of a matter
to give the public their say.
Man, they're arrogant.
But the CDC failed to articulate their reasoning,
and they failed to connect their reasoning to a finding in fact.
They had no good cause.
They just ran rampant, including establishing fines and penalties
for non-mask wearers.
And this was not a harmless error.
The CDC knew what they were doing.
They apparently didn't want to allow the public
to make their arguments, and they apparently
did not want to be responsible to post
on their website the comments and the arguments.
Now, in my opinion, it's not the judge, but in my opinion,
the CDC did not want the numerous studies
from around the world that claimed mask wearing was not
effective.
They didn't want the well-respected doctors
and health institutions' findings to be recorded.
But hey, that's just me.
Back to the judge's ruling.
The whole point of notice and comment
is to provide balance and rein in an agency like the CDC.
The CDC clearly did not comply with the requirement
for notice and comment.
So round two goes to the Freedom Guys.
Since the notice and comment was not complied with,
and case law shows that when that fundamental violation is
made by an agency, that the rule of the agency
should be terminated.
That's the law.
The judge, for this claim alone, sets aside the mask mandate.
So far, we've got two claims.
the Freedom Guys, and they've won both.
The CDC did not have the authority
to issue the mask mandate,
and the CDC violated the notice and comment period,
and that's just provable.
But there's more.
The third claim by the Freedom Guys
was that the mask mandate is arbitrary and capricious
because the CDC failed to adequately explain
their rationale.
The judge agreed that the CDC did not adequately explain
its reasons for the mask mandate.
The CDC didn't explain why a cloth mask was useful,
for example.
The CDC didn't explain why temperature checks
and testing was not worthwhile or sufficient.
They didn't explain why occupancy limits
would not be effective.
In fact, the mask mandate provides no explanation
for the CDC's choices at all.
The law does not require the CDC
to evaluate every alternative known to man,
but it does require that it consider
and explain its rejection of reasonably obvious
and viable alternatives.
The judge says that rather than explain
why those alternatives were not effective,
the CDC was mired in inconsistent thought and behavior.
It said that, for example,
that universal masking reduces transmission,
but it allowed exceptions for eating,
drinking, or taking medication.
This should have been explained.
It allowed mask exclusions for children
under the age of two.
That's not masking entirely.
So on the one hand,
they say that only universal masking is effective,
and on the other,
they give no explanation for this exception.
The claim is that they're being arbitrary.
Arbitrary is synonymous with illogical,
haphazard, and random.
They just don't explain why a two-year-old
is less likely to transmit the disease
than a 62-year-old.
That's arbitrary.
They simply made their directives,
but did not comply with the requirement
to explain themselves.
In fact, there's no rational connection
between the facts that were discovered
and the choices that the CDC made.
The judge explains that even if you agree
that the CDC should be given deference on these matters
because of their experience,
it still must provide solid rationale
on why it found its decision persuasive.
It still must explain what their experience is on the issue
and how that knowledge informed the decision.
And the judge says the CDC did not do that.
It did not explain why a two-year-old got an exception
and a three-year-old did not.
That's arbitrary and capricious.
No study, no science, no explanation at all,
just a cutoff.
Somehow, automatically,
between two and three years of age,
you don't need a mask.
Capricious also means unpredictable,
erratic, or unreliable.
The point of the law is that by allowing public debate
to inform the agency
and by properly explaining the CDC's case,
the CDC could make the rule trustworthy, reliable.
The law requires that the agency,
and in this case, that's the CDC,
explain why it acted the way that it did.
So the judge goes on to explain
why a solid rational explanation for a rule
is the law of the land.
When an agency, like the CDC, gets sued,
in order for the rule to hold up,
whatever that rule is,
it has to be able to explain enough detail
to the reviewing court that the court can determine
that the government agency
used its discretion appropriately.
It's a protection mechanism for rules to be fair.
Rules are, after all, put in place
by people who are not elected.
If a rule's put in place properly,
the court can look at all their justifications
on the alternative approaches to the rule
and they can make their case.
But the CDC, according to the judge,
didn't even try to explain.
The judge ruled that since the CDC
did not link the facts to their decisions,
the decision is arbitrary and capricious.
So the mask mandate is set aside and gets remanded,
or that means to be sent back to the CDC.
So round three goes to the Freedom Guys.
The mask mandate is proven to be without authority,
round one, without proper notice or comment,
round two, and now, round three,
it's objectively shown to be arbitrary and capricious.
Could there be more?
Yes, the final claim by the Freedom Guys
is that the mask mandate should be vacated
for violating the Administrative Procedure Act.
It's a clear law and we know what it says.
The CDC tried to argue that even if the mask mandate
is ruled unlawful, they knew they were on weak ground here,
that it only applied to Anna Daza and Sarah Pope
and the members of the Health Freedom Defense Fund.
But the Administrative Procedure Act requires that the courts hold unlawful and set-aside
agency action if they violate the APA or if they exceed the agency's authority for everyone.
The courts have a long history of authorizing that the whole rule be thrown out if either
of those two violations occur.
It doesn't just apply to the two people who had the fortitude to levy a lawsuit or to
the members of the defense fund who took it on.
It applies to everyone else who's impacted by the unlawful rule.
Besides, the judge goes on and explains, how would you know if you're a ride-sharing driver
that the plaintiff is legit?
Everybody just comes into the ride and says, hey, I'm coming into the car and I'm not wearing
a mask.
I'm Sarah Pope and I don't have to wear a mask.
So the judge shows how ridiculous it would be to just overturn the national rule for
two people or for two people plus the members of the defense fund.
So, universal relief from the rule is the only fair remedy and the case law is pretty
clear on that, especially when the plaintiffs are from all over the place, which is the
case of the aggregated freedom guys.
Plain and simple, if you violate the Administrative Procedure Act, the appropriate remedy is vacator
or nullification of the rule.
There are abundant examples of other rules being thrown out in totality for violating
the Administrative Procedure Act.
And for the same violations the CDC committed, both for the lack of notice and comment and
failure to comply with statutory requirements, the CDC just bulldozed right past those.
So, complete nullification of the rule is the appropriate remedy for the plaintiff's
injury.
Boom!
Round four goes to the freedom guys.
The order was applicable to the country, so when the mask mandate was smacked down
by a federal judge, it applies to the whole U.S. of A.
The CDC exceeded their authority.
The CDC did not allow for proper notice and comment.
The CDC did not properly explain its decisions.
The CDC acted unlawfully.
Bada boom, bada bang.
So, it's ordered April 18, 2022.
Catherine Kimball Mizell, United States District Judge.
So the freedom guys had a really good day, but the CDC should have had a more humble
view of their role to begin with.
They should have encouraged and openly discussed alternative views.
Let those ruminate.
They should have made the comment and notice period a transparent discovery time.
They should have never violated the law.
They should never have had a national mask mandate.
But thank God, there are still rules and some legal thought in place that provide some safeguards.
And thank God for a judge who thinks clearly.
To your freedom.
God bless.
Hi, I'm David Farah.
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