COMMUNITY NEWS
Judge Voids Airline Mask Mandate; Justice Dept. Appeals O
By Jondi Gumz
n April 18, a federal judge in Florida ruled that the mask mandate for airlines, trains and buses — ordered by the federal Centers for Disease Control and Prevention on Feb. 3, 2021, as a protection against Covid-19 — was not lawful. The Justice Department is appealing at the request of the CDC but the agency did not ask for a stay of the ruling, which would have reinstated the mask mandate. Meanwhile, airlines made masks optional, and United’s CEO said passengers who don’t want to fly can apply for a credit or a refund. U.S. District Judge Kathryn Kimball Mizelle ruled in favor of Health Freedom Defense Fund and airline travelers Ana Carolina Daza and Sarah Pope, who claimed the CDC failed to provide a 30-day comment public period required for new regulations. Mizzell provided a 59-page explanation: The Public Health Services Act of 1944 empowered the CDC to quarantine individuals found to be infected upon examination and prohibit import of animals known to transmit disease. The law specifies the kinds of measures that could be necessary to prevent the spread of disease, inspection, fumigation, disinfection, sanitation, and pest extermination, but the law does not define sanitation. Dictionaries from this time define sanitation as cleaning or removing elements injurious to health. “Wearing a mask cleans nothing,” the judge wrote. “At most it traps virus droplets. But it neither ‘sanitizes’ the person wearing the mask nor ‘sanitizes’ the conveyance.” The mask mandate applied to anyone at an airport without any finding that any individual is reasonably believed to be infected. The government’s argument that the court should defer to an agency interpretation when a law is ambiguous applies only when other interpretative tools yield no clear sense of Congressional intent. As explained above, the statute is not ambiguous. The government interprets “sanitation” to mean “applying of measures for preserving and promoting public health.” If Congress intended this definition, “the power bestowed on the CDC would be breathtaking,” the judge wrote. The mask mandate came with a threat of civil penalties — $500 to $1,000 for the first offense and $1,000-$3,000 for repeats — and criminal fines of up to $100,000
along with the power to require transit facilities enforce the CDC’s commands. The mask mandate is considered a major rule under the Congressional Review Act, likely to have an effect of $100 million or more a year, a major increase in consumer prices or significant adverse effects on the economy. The most notable use of the 1944 statute before this was to ban small turtles due to a risk of salmonella, suggesting the power seen by the federal power is a mirage. Historically, public health has been regulated at the state level, and the 1944 law has no clear language indicating Congress intended for the CDC to invade the state-operated area of population-wide preventative public health regulations. Because the CDC exceeded its authority, the court must set aside the mask mandate. Secondly, the Administrative Procedures Act requires that agencies provide an opportunity for the public to review and comment on a new rule before it takes effect. The comment period must be at least 30 days, and the agency must consider and respond to significant comments. The CDC did not allow for public comment. There are two exceptions, interpretive rules that are not binding on the public — which does not apply — and when there is good cause to bypass 30 days of public comment. The CDC’s assertion of a public health emergency caused by Covid-19, without information to explain an exceptional circumstance at the time, is insufficient, so good cause does not apply. (In contrast, Medicare mandated without public comment vaccination of staff at healthcare facilities funded by Medicare and provided almost four pages of reasoning with 44 footnotes of supporting sources.) The mask mandate came 19 weeks after the president had declared COVID-19 a public health emergency, suggesting the CDC did in fact have time to take public comment. The CDC spent two weeks drafting the mask mandate after the president called for it, and public comment could have added two more weeks. Another option could have been to issue a binding interim rule and allow public comment on a final version. The government contended the
delaying the mask mandate would do harm because it would lead to increased Covid-19 transmission, but the CDC failed to articulate its reasoning for the legal record. Process matters. The purpose of notice and comment is to reintroduce public participation and fairness to affected parties after government authority has been delegated to unrepresentative agencies. Finally, the CDC did not explain exemptions in the mask mandate for people eating, drinking or taking medication or for children under age 2. The agency merely announced these exceptions. By not explaining its decision to compromise the effectiveness of the mask mandate, the CDC action was arbitrary and capricious. Dr. Vinay Prasad, a medical doctor with a master’s in public health, posted his views on YouTube: As a traveler, he saw people with their cloth mask lowered for much of the flight, so the policy did not make sense. A randomized controlled trial of cloth masks in Bangladesh found no benefit compared to no mask at all, he said, and the CDC never did a study to generate scientific evidence that wearing cloth masks slows spread on an airplane. He said travelers can choose to wear an N-95 mask, which has been shown to provide protection. Omicron Less Deadly he Omicron variants spread more easily but are less deadly than the Delta variant, which raged in 2021. Santa Cruz County reports 260 Covid deaths, up from 225 as of Dec. 15, before Omicron was confirmed on Dec. 16 and 17. Eight deaths were reported in the past month. One statistic is similar: 79% to 81% of those who died had pre-existing conditions. Hospitalizations which peaked in January from Omicron have plummeted, in California and locally. The state Department of Public Health reports test positivity, 23% in January, has ticked up from 1.7% to 2.6% but hospitalizations — 20,000 at the peak of the Omicron surge in January — are below 1,000. In Santa Cruz County, three people are hospitalized with Covid, including one in intensive care. In the past month, eight county residents have died of Covid, bringing to the total to 260 deaths. Underlying conditions were a factor in 20 of the 21 local deaths this year during
T
the peak of the highly contagious and thought-to-be-mild Omicron variant. The most COVID fatalities in the county occurred in January 2021, when vaccines were not available and 22 people died in one week. The Omicron variant called BA.2 “appears to be about 50% more transmissible than the original omicron strain BA.1, according to UC Davis Health. “Preliminary data suggests omicron BA.1 causes the same severity of disease and symptoms, but it’s affecting younger people more.” Why do people fear Omnicron? They may have a pre-existing condition (diabetes, obesity, asthma, high blood pressure). Half of Americans do, so they are at higher risk for severe Covid illness. So are people 85 and older. California reports 84.1% of residents age 5 and up have had at least one shot. On the CDC Covid tracker, Santa Cruz County reports 90.7% of residents age 5 and up have at least one shot and 82.4% fully vaccinated. As of April 1, people 50 and older in California are eligible for a second mRNA booster shot from Moderna or Pfizer. Also, kids 12 and older are eligible for the Pfizer booster and those 18 years and older with moderate and severe immune-suppression are eligible for a Moderna booster. Opposing Mandates BA legend and Gonzaga alum John Stockton is co-founder for Athletes for Medical Freedom, along with former Packers lineman Ken Ruettgers and Australian pro surfer Barton Lynch to provide support for choice. Dr. Pamela Popper, whose group funded a lawsuit against the city of Boston’s vaccine passport for indoor restaurants, entertainments and fitness, reported Mayor Michell Wu lifted the proof of vaccine requirement in response to the lawsuit. The group is defending doctors in Washington State, Ohio, and Maine attacked by state medical boards for prescribing early treatment drugs for Covid and speaking out about Covid vaccines. Updates are at https://makeamericansfreeagain.com/ Proposed Laws wo years after the pandemic arrived, the CDC map of Covid-19 shows most counties green, low transmission in most of California with a hot spot in western New York State.
N
T
“COVID Update” page 9
www.tpgonlinedaily.com Capitola Soquel Times / May 2022 / 7
