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Monday, December 09, 2019 {{ new Date().getDay() }}

Billie Grace Ward

Legal experts are hammering U.S. District Judge Kathryn Kimball Mizelle for axing the federal government's COVID-19 mask mandate based on her own flawed elucidation of the word "sanitation."

The Biden administration argues that masks are categorized as a form of "sanitation," according to the law, but Mizelle argues otherwise. Instead, NPR reports that she's opted "for a much narrower definition of the term that would exclude measures like face coverings;" an interpretation with which legal experts strongly disagree.

According to NPR.org, President Joe Biden's administration has supported its action to keep the mask mandate in place by focusing on key clauses in the U.S. Public Health Service Act of 1944. That law grants the federal government "certain powers to respond to public health emergencies." which is why the administration has been able to maintain the mandate on public modes of mass transportation such as aircraft.

Per NPR: "Specifically, the law says that if the government is trying to prevent the spread of communicable diseases, it can 'provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary.'"

Now, legal experts are criticizing Mizelle's stance. Erin Fuse Brown, a Georgia State University law professor, also offered her opinion of the judge's legal argument. "If one of my students turned in this opinion as their final exam, I don't know if I would agree that they had gotten the analysis correct," Brown said.

"It reads like someone who had decided the case and then tried to dress it up as legal reasoning without actually doing the legal reasoning," she added.

James Hodge, an Arizona State University law professor, also weighed in with a critical opinion of Mizelle's ruling. "If this particular type of opinion took on greater precedential value as it rises up through the court system, if that happens, it's big trouble for CDC down the road," Hodge said.

NPR reports that Hodge argues, Mizelle "substituted her own definition of 'sanitation'" while "brushing aside a legal norm known as 'agency deference' that compels judges to yield to the interpretation of federal agencies when a law's language is unclear."

"This is really a serious deviation from not just what we're trying to do to protect the public's health, but a misstatement of federal authority in emergencies to a great degree," Hodge said.

Brown also agreed with the sentiment. "Even if we're skeptical about agencies or even about Congress's ability to make good judgments in this ... time," she said, "we certainly do not want these decisions to be in the hands of a single unelected judge."

Published with permission from Alternet.

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