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U.S. District Court Judge Kathryn Kimball Mizelle ruled yesterday in Health Freedom Defense Fund v. Biden that the mask mandate from the Centers for Disease Control and Prevention (CDC) requiring travelers as young as two years old to wear face masks while using public transportation was outside the agency’s authority and unlawful.

Most major air carriers including Alaska Airlines, American Airlines, Delta Air Lines, Jet Blue, Southwest Airlines and United Airlines stated they were dropping their mask requirement effective immediately.

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On January 21, 2021, Joe Biden signed Executive Order No. 13998, “Promoting COVID-19 Safety in Domestic and International Travel.” It ordered “Immediate Action to Require Mask Wearing on Certain Domestic Modes of Transportation.” The order took effect nationwide on February 1, 2021 and required that passengers must wear face masks while “boarding, disembarking and traveling on aircraft, trains, road vehicles including ride-sharing services and other means of transport.” The mandate was set to expire Monday but then the CDC announced last week that it would keep it in place until May 3, 2022.

Health Freedom Defense Fund is a non-profit organization that “opposes laws and regulations that force individuals to submit to the administration of medical products, procedures and devices against their will.” Health Freedom Defense Fund and two plaintiffs located in Florida sued in the U.S. District Court for the Middle District of Florida to challenge the mask mandate on July 12, 2021. Both plaintiffs are frequent air travelers and suffer from anxiety and panic attacks that are aggravated by wearing a mask.

In her order, Judge Mizelle vacated the mandate and determined that the mandate violated the Administrative Procedure Act by being outside the scope of the CDC’s authority, was “arbitrary” and “capricious” and did not go through the required notice and comment period for federal rulemaking.

Judge Mizelle wrote, “The CDC did not allow for public participation through notice and comment before issuing the Mask Mandate. Accordingly, promulgation of the Mandate violated the APA unless an exception to the ordinary rulemaking procedure applies…The only reason the Mandate cites is the ‘public health emergency caused by COVID-19’” and “COVID-19 itself does not ‘always’ justify an agency bypassing notice and comment process… Instead the agency must–at the very least—’identity specifics reasons why in the environment of the regulation the ongoing pandemic constituted good cause.’ The Mandate does not do that.”

The court also noted that the CDC’s reasoning about “sanitation” was flawed because the sanitation power only applies to property, not to people.

The order continues, “As a result, the Mask Mandate is best understood not as sanitation, but as an exercise of the CDC’s power to conditionally release individuals to travel despite concerns that they may spread a communicable disease (and to detain or partially quarantine those who refuse). But the power to conditionally release and detain is ordinarily limited to individuals entering the United States from a foreign country. Subsection (d) allows for detention of an individual traveling between States only if he is ‘reasonably believed to be infected’ and is actually found ‘upon examination’ to be infected. The Mask Mandate complies with neither of these subsections. It applies to all travelers regardless of their origins or destinations and makes no attempt to sort based on their health. The CDC may not attempt to shoehorn into subsection (a) a power Congress denied it in subsections (c) and (d). As a result, the Mask Mandate exceeds the authority the statue grants the CDC.”

Liberty Counsel Founder and Chairman Mat Staver said, “Since the beginning of the COVID pandemic the CDC has unlawfully exceeded its authority and discredited the agency by its contradictory and ever-changing statements. This court decision is yet another blow to the CDC and the Biden administration. Many people have been harassed, punished, and fined over the travel mask mandates stemming from the CDC’s unlawful policy. Any traveler who was punished over this mask mandate should have that punishment reversed. The CDC should be the watch dog to protect public health. However, like the FDA, it has become the lapdog for the pharmaceutical industries and specials interest groups. Liberty Counsel is continuing the fight to get all the shot mandates overturned.”

Author: Liberty Counsel

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