“You’ve probably heard by now that Judge Kathryn Kimball Mizelle, a Trump-appointed judge in Florida, issued a sweeping opinion striking down the Biden administration’s requirement that passengers wear masks on airplanes, trains, and similar methods of transportation,” Vox said here (read CNN‘s news story here, and Judge Mizell’s decision here).
If you don’t have time to read a legal decision, or you’re not a lawyer and don’t know how, there’s a shortcut you can use: Check out the judge’s experience and credentials, which may offer clues about whether the decision is impartial, well reasoned, and firmly grounded in law.
Judge Mizelle is 35 years old and has been a federal judge for less than 16 months. She graduated from a private Christian college and the University of Florida’s law school, was a Supreme Court law clerk for Clarence Thomas, and worked for a prominent D.C. law firm and the Department of Justice, but never tried a case in court. That led the American Bar Association to rate her as “not qualified” due to lack of experience.
Trump appointed her after losing the 2020 election; Democrats boycotted her confirmation hearing and voted against her. She was one of a batch of lawyers he scooped out of the Federalist Society, an organization of conservative lawyers, and dumped on the federal bench. She once attended a weeklong workshop at the disreputable Claremont Institute, which advocates against democracy. (Details here and here.)
In short, she has an impressive resume, but is a partisan appointee, and her inexperience and short time on the bench invite scrutiny of her decision-making. Representing employers while in private practice, she argued against workplace Covid-19 safety rules, which might call into question the impartiality of this decision, although keep in mind that lawyers are trained to argue either side of an issue, so that doesn’t necessarily prove she predetermined the result in this case. In any case, federal district judges don’t final say; their decisions are subject to review by higher courts.
Judge Mizelle’s decision basically says the CDC exceeded its authority by issuing the mandate and didn’t comply with requirements of the administrative procedures act in adopting it. In other words, it isn’t based on public health needs or whether the mandate is still necessary. The Biden administration promptly appealed.
This question of the limits of federal agency authority is a political flashpoint between liberals and conservatives, and ultimately gets fought over in the courts. Decisions like this, by conservative judges, aim at reining in government by striking down expansive interpretations of its authority. This is part of why appointing conservative judges is such a big deal to Republicans. So, it’s not just about their antipathy to masks and other Covid-19 safety measures; for them and liberals alike, it’s bigger than that.
On a philosophical level, it gets down to whether you look to government for solutions to society’s problems, or like Reagan think “government is the problem.” This is one of the fundamental fault lines between American liberals and conservatives.
I chose sides long ago, having concluded that the laissez faire approach doesn’t work. Rightwing opposition to lockdowns, masking, workplace Covid-19 safety measures, and vaccination prolonged the pandemic and cost lives. The pathway out was marshaling government resources to vaccinate the U.S. population, and meantime buy time with mitigation measures.
But legal decisions aren’t based on the practical wisdom, or lack of it, in exercise of governmental authority. Our system is based on a complex allocation of governmental powers, on an underlying foundational philosophy of limited government power (which has tended to expand over time as civilization has become more complex).
Judge Mizelle’s decision starts out, “The APA requires that reviewing courts ‘hold unlawful and set aside agency action’ that is ‘arbitrary’ or ‘capricious’; ‘in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;’ or that was ‘issued without observance of procedure required by law.” This is correct, basic, and quoted from a federal statute. The trick is in applying it to the facts of a given case.
Any lawyer experienced in administrative law will tell you the “arbitrary and capricious” standard is a high bar that effectively creates a strong presumption of agency correctness. But Judge Mizelle brushed that aside, and embarked upon a dense dissertation on statutory construction that reflects an underlying bias toward interpreting the CDC’s statutory authority as narrowly as possible. Tellingly, she invoked states’ rights, a favorite rightwing shibboleth, arguing the statute “has no ‘unmistakably clear’ language indicating that Congress intended for the CDC to invade the traditionally State-operated arena of population-wide, preventative public-health regulations,” which changes the burden to be met from challenging the agency decision to one of justifying it. To get to her result, she gets tangled up in definitions, twisting words into pretzels, and ends up saying the CDC has authority over “sanitation” but not a communicable disease.
I’m not impressed. Conservative appeals judges may uphold her decision, but to me it looks thinly reasoned and politically-motivated. I base this not on what authority I think the CDC should have, but on what authority I think it does have. We are long past the point where a national health emergency can be managed with 50 different state policies and sets of capabilities, and Congress recognized that long ago. Who in Congress, in 1944 when this statute was enacted, or today, would contemplate a system under which health regulations change every time a plane, train, or bus crosses a state line on its journey across the country?
Numerous legal experts have panned the decision. Typical of many comments, a CNN legal analyst (here) called the reasoning “tortured” and politically-motivated; a Vox legal anaylst concluded (here) that “she simply disagreed with the Biden administration’s masking policy, and concocted a justification for striking it down,” and accused Judge Mizelle of “semantic sophistry” and “bad faith;” and an MSNBC legal analyst wrote (here) that she “misunderstands how the federal government can and does function.”
Given the broad implications this portends, perhaps the saddest thing of all is she could be on the bench, writing incompetent opinions, for another 40 or 50 years.
Related stories: The fact a judge struck down the federal mask mandate doesn’t mean the pandemic is over, or it’s safe for people to go without masks. With the B.A.2 variant surge now here in full force (see story here), will unmasking make flying unsafe? Find out here. Read about current advice here (spoiler alert: Keep your mask on, even if it’s not required).
Photo below: Can you guess which of these people are more likely to get infected with Covid-19?
