The Center for Disease Control’s (CDC) “Mask Mandate” was recently vacated by a Florida district court on the grounds that it exceeded CDC’s statutory authority and violated the procedures for executive branch rulemaking set forth under the federal Administrative Procedure Act (APA). While challenges to masking requirements have become relatively common, the challenge at issue here was to CDC’s Mask Mandate that compelled masking at a federal level at airports and train stations and on airplanes, trains, and ride-sharing vehicles. Long after COVID fades from public prominence, the decision in Health Freedom Defense Fund, Inc. v. Biden may continue to shape administrative responses to future crises related to public health or environmental issues.

The Mask Mandate

The Mask Mandate was a COVID-motivated CDC regulation published in the Federal Register shortly after President Biden took office. CDC published the Mask Mandate without allowing notice-and-comment under the APA on the grounds that any delay in implementing the regulation “would be impracticable and contrary to the public’s health.” 

In general, the Mask Mandate requires persons to “wear a mask while boarding, disembarking, and traveling on any conveyance into or within the United States,” including aircraft, trains, and motor vehicles. Persons traveling through locations including airports, train stations, and subway terminals were likewise required to wear masks, and officials operating facilities like these were required to use “best efforts” to enforce masking. While the Mask Mandate was intended to be broadly applicable, it excluded groups of people including children under two years old; persons with disabilities within the scope of the Americans with Disabilities Act (ADA); persons using oxygen; and persons who were “eating, drinking, or taking medication.”

The Mask Mandate was challenged by two individual plaintiffs and the Health Freedom Defense Fund, who alleged both that the Mask Mandate exceeded CDC’s statutory authority and failed to require with regulatory procedures set forth under the APA. Following submission of the administrative record supporting the Mask Mandate, plaintiffs and the government officials named as responsible for implementing the Mask Mandate moved for summary judgment.

Preliminary Takeaways

The 59-page summary judgment decision is available here. Unpacking the whole decision is beyond the scope of this blog post and involves complex questions of statutory interpretation, administrative law, and federal procedure. Some preliminary takeaways:

• Even in Emergencies, Agency Actions Must Be Within Congressionally Granted Authority.

The statutory roots of the Mask Mandate are in the Public Health Services Act of 1944 (PHSA). Prior to the Mask Mandate, the PHSA had been used sparingly in “quarantining infected individuals and prohibiting the import or sale of animals known to transmit disease.” When the COVID pandemic began in early 2020, CDC began to root various response actions in the PHSA and used it to shut down the cruise ship industry, preclude landlords from evicting tenants during parts of the pandemic, and require persons on public transportation to wear masks.

The Health Freedom Defense Fund decision relates only to the Mask Mandate. (Note: we discussed some administrative law takeaways from other COVID-related response actions here.) The Health Freedom Defense Fund decision holds that CDC’s reliance on the PHSA to compel Americans to wear masks when engaged in transportation-related activities was beyond the powers Congress granted when it passed the PHSA.

The court’s analysis in reaching this conclusion relied on various statutory interpretation tools including reviewing the PHSA’s plain meaning, picking through phrases in the statute to discern the context in which words were used, and even using a database tracking historical word usage to ascertain what power had been delegated to executive agencies.

Plain Language and Context

The court first looked at the plain meaning of relevant portions of the PHSA. The court found that the statute only authorized regulations to prevent the spread of diseases for specific, limited circumstances: (1) individuals traveling from foreign countries into the States; and (2) for the purposes of “inspection, fumigation, disinfection, sanitation, pest extermination, destruction . . . and other measures.” (Emphasis ours.) The court next examined whether the Mask Mandate was “sanitation,” and concluded that wearing a mask neither “sanitizes the people wearing the mask or the conveyance.” The court buttressed its conclusion through referencing the Corpus Linguistics database which purported to show how the word “sanitation” was used when the PHSA was enacted in 1944 and found that the primary use was to make things clean, not to maintain a status of cleanliness. (Note: Some commentators have already raised issues with how the court used this database, see, e.g. here.) Similarly, the court rejected use of other portions of the PHSA focused on quarantine on the grounds that, even in settings of where COVID could spread, chances of the Mask Mandate preventing viral transmission were remote. Accordingly, the court determined that the Mask Mandate was outside the scope of powers Congress intended to delegate to CDC when it passed the PHSA, and ultimately, the Mask Mandate was unlawful.

The court referred to the “major questions” doctrine as a second reason as to why the Mask Mandate was unlawful.  The US Supreme Court’s decision in National Federation (which we discussed here), also turns on the “major questions” doctrine. The court noted that CDC had used the PHSA to justify various COVID-related restrictions and that permitting the Mask Mandate to be with it led to a slippery slope of “breathtaking” power where air filtration, plexiglass dividers, or even more stringent (and costly) measures could be imposed.

• The APA’s Preference for Notice-and-Comment Rulemaking Will Not Be Lightly Disregarded.

As we have discussed, the APA is foundational to most how federal agencies regulate, and allows agencies to bypass the usual notice-and-comment rulemaking procedures if they can show good cause for doing so. CDC argued this applied to the Mask Mandate because, “[c]onsidering the public health emergency caused by COVID-19,” it would be impracticable and contrary to the public health and interest to delay the rule while the rulemaking process played out. The court rejected this rationale as “conclusory” and held that the APA requires agencies to provide specific reasons why it must forego the normal process. CDC’s rationale ― one-sentence — contrasted with the “almost four pages” of reasoning the government supplied when it mandated vaccines for healthcare workers.

One sentence, the court concluded, was insufficient. In its view, the APA “presupposes” that public benefit of notice-and-comment will ordinarily outweigh the costs of delaying agency action. The court noted in this case the benefits of public comment were “at their zenith” because the Mask Mandate would interfere with the daily lives of citizens, carried the threat of civil and criminal penalties, and the Mask Mandate was a “novel” public health measure. CDC also suggested that skipping notice-and-comment was harmless because the agency was already aware of the potential objections to the Mask Mandate. Public involvement was required.

• Agencies are Required to Provide Justification for Their Policy Choices

The APA requires not just that agencies behave reasonably, but they also must explain their “decision[s] with enough particularity that a reviewing court can determine that . . . discretion [was used] appropriately.” The court held that CDC failed to provide specific reasoning for the individual exceptions to the Mask Mandate and was arbitrary and capricious “irrespective of whether the CDC made a good or accurate decision.” Accordingly, the court found that the Mask Mandate was unlawful.

The Court Vacated the Mask Mandate on a Nationwide Basis Out of Practical Concerns for a More Limited “Vacatur”  

The APA directs courts to “hold unlawful and set aside agency action” that violates the APA or exceeds an agency’s authority. “Vacatur” ― elimination of a regulatory provision as if it never existed ― is one possible way to set aside challenged agency actions. Another possible remedy for an APA violation is to proscribe the application of the challenged provision to named plaintiffs only. Here, the court found that any judgment merely stating that the named plaintiffs need not follow the Mask Mandate “would be no remedy at all [as no] ride-sharing driver, flight attendant, or bus driver” could “know someone is a plaintiff to this lawsuit with permission to enter mask-free?” So, the court struck down the Mask Mandate on a nationwide basis, something that historically has itself generated controversy.

What Comes Next?

CDC has indicated that it will appeal this decision. However, since the Mask Mandate was set to end in early May, any appeal might be rendered moot before it is meaningfully evaluated.