Speaking of the bad precedent we set with unjustified mask policies, this Powerline article pretty much nails the legal frailty of the CDC mandate. There are actually rules for how even benign and omniscient federal agencies can impose mandates, which the CDC refused to follow.
Congress delegated certain powers to CDC under the 1944 Public Health Services Act, 42 U.S.C. § 246(a), including the power to impose emergency "sanitation" requirements. U.S. District Court Kathryn Mizelle found that masks did not qualify as emergency "sanitation,
even assuming that the CDC was substantively correct that masks, if imposed legally, would slow COVID transmission. (A big "if," but she gave it to them.) Sanitation normally refers to things like disinfection of premises or euthanizing infected herds. These are precautionary measures that must be implemented immediately if they are to have effect. They are not comparable to masking the entire human population for two years. Federal nannies typically experience difficulty understanding the difference between a long-term situation that calls for considered legal action and an emergency that allows them to throw the rule book on the fire. You need an emergency measure? OK, impose it very briefly while you run the traps on the usual legal requirements for an extension.
Supposing for argument's sake that a case can be made to mask the entire human population for two years, there's a process for that, too. It includes a proposed regulation followed by a public notice and comment period. The CDC skipped this step entirely, employing the perfunctory defense that a public review would be “impracticable, unnecessary, or contrary to the public interest.” Why? Because we said so. The CDC merely recited the statutory language, except to make the extraordinary argument that public review would be futile because the CDC's mind was already made up. "Shut up, they explained."
It takes chutzpah to claim that one's mind is so made up that it would be pointless to discuss the issue, while failing to articulate the reasoning when hauled into court over it. I look forward to November. May these people be banished from power for a long, long time.
It sounds like the way we fight wars without getting Congress to declare them. Procedures are deemed too inconvenient.
ReplyDeleteI have actually seen Federal agencies modify their policies following a public comment period. It always shocks me, though I'm inevitably pleased to learn that they actually listened.
ReplyDeleteThe FAA is one of the more responsive agencies in terms of responding to public comment. It could be that 1) the group affected is small and 2) vocal and 3) used to commenting and providing evidence for our complaints/comments/counter-proposals.
ReplyDeleteLittleRed1
"May these people be banished from power for a long, long time.
ReplyDeleteOr we could play April 19th on the whole damned lot of them.
It is worth noting that the two segments of our society that have the best safety record are hospitals and air travel, the two that present the most hazard and highest risk. The reason for this is their dedication to a progressive safety culture, in which open and uncritical communication is held sacred. There is no other way to achieve that kind of record, IMO. I have run a couple of drilling programs with hazards that would be almost unimaginable to the unfamiliar, and yet we have accomplished them without a single recordable injury or incident. It can be done - but not without establishing an environment that is completely free of stigma or shaming when reporting hazards, empowering people to stop the job, and being ruthlessly committed to addressing the hazards when they are identified. Ironically, when the culture becomes established, the efficiency gains are something to behold.
ReplyDeleteIf a principled and credible case could be made that the mask mandates were effective, I'd have expected the Biden administration to make it in defense of the Florida federal case, instead of taking the position that the CDC's mind was made up and it didn't need to say why. It's possible that the CDC has got the data and has its own reason for not sharing it, but that's not the most persuasive approach it could have taken. I'm left with possibly imperfect data on one side and naked assertions on the other.
ReplyDeleteIn a one-sided argument like this, I accept that the one side may be mistaken, but that doesn't mean I'm likely to conclude that the other side must be correct--particularly if its proposed mandatory approach creates huge problems (social, political, economic, and medical) in exchange for undetectable benefits.