How an ‘unqualified’ and overzealous judge just rewrote public health law as we know it | The incision | Detroit

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Judge Kathryn Kimball Mizelle.

I was hoping not to have to write about COVID for a while. But last week, a Trump-appointed judge from heartland Florida submitted a deranged Facebook rant as legal advice, which could have far-reaching implications for public health efforts nationwide.

So here we are.

First, a little background. In the apocryphal words of Mark Twain: Reports of the demise of the pandemic are greatly exaggerated. COVID cases have increased over the past two weeks. And, just at the right time, COVID hospitalizations have followed, increasing over the past few days.

Admittedly, cases seem to be slowly increasing – at least as far as we know. PCR testing facilities – those that report their numbers to public health authorities – have been downgraded across the country. Over the past month, reported testing has declined by around 20%. But test positivity nearly doubled. This suggests that we are almost certainly underestimating our current workload.

Needless to say, now is not the best time to roll back COVID precautions. Indeed, as I have written previously, the main drawback of the Centers for Disease Control and Prevention’s new masking policy – which conditions masking recommendations on COVID cases, hospitalizations and the proportion of hospital beds occupied by COVID patients – is that the measures are late indicators. This sets up a scenario in which masking guidelines may only come into effect after COVID has had weeks to spread unhindered. Following the recent increase in cases, the CDC has expanded masking requirements on public transportation, including airplanes and airports.

Last Monday, Judge Kathryn Kimball Mizelle struck it down, which I have to say is the most poorly written, vaguely reasoned, and clearly politically motivated court decision I have ever read.

Before cutting into the decision itself, a word about this judge. A member of the Federalist Society, she worked for Justice Clarence Thomas (whose wife Ginni tried to overthrow our democracy). She was nominated by Donald Trump after losing his election to Joe Biden. The youngest of her appointees, the American Bar Association declared her “unqualified” because of “the short time she practiced law and her lack of significant trial experience”. She was confirmed in a party-line vote by the Republican-controlled Senate. It’s only fitting that she represents the “Central Florida District”.

The U.S. Public Health Act gives the government the power to “make and enforce regulations such as […] are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the states or possessions, or from one state or possession into any other state or possession” and “may provide for such inspection, fumigation, disinfection , sanitation…”

What the Central Florida judge had to say is worth reading in full.

This legal opinion rant now sets a precedent that significantly limits the powers of the federal government to respond to public health emergencies.

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Let me walk you through this legal word salad. Textualists like to try to situate a key word in a text of law in its own socio-temporal context, often turning to dictionaries from the period in which the law was written (in this case, 1944) for definitions. . Not the approach I would take, but fair enough. The judge found two definitions for “disinfect”, which she identifies as the key word in this law. One definition involves actively cleaning something, and the other simply involves keeping it clean.

This is where it gets downright silly: first, it arbitrarily decides that only one of these definitions, rather than both, can apply here. Second, she conveniently chooses one that excludes the obvious intent of the mask mandate.

Obviously, the masks aren’t actively cleaning anything. Instead, they keep the air clean virions that cause COVID-19. But Judge Mizelle is jumping hoops to explain why, despite clearly being a definition of “disinfect” contemporaneous with when the law was written, it does not apply here. His opinion is so poorly reasoned that it is laughable. I teach public policy at the graduate level, and if a student had submitted it to me, I would have marked it for lazy and arbitrary logic.

JThe audacity of this is not just that the fate of millions of travelers rests on absurd logic. It is that this rant of a legal opinion now sets a precedent that significantly limits the powers of the federal government to respond to a public health emergency. Judge Mizelle’s ruling not only hampers our ability to cope this pandemic – it also forces the government to deal with future threats to our health.

Above all, the Ministry of Justice is about to appeal the decision. They had to — otherwise they would waive some of our country’s most fundamental public health laws as we know them. The message here is that they’re not asking for a reprieve, which means it’s not so much about reinstating the transit mask mandate right nowit is to remedy the absurd precedent that this judge would establish if this decision were upheld.

Nearly one million people have died in the United States during this pandemic. And the tragic and brutal irony of this is that despite this, the pandemic has not redoubled our commitment to building the tools and infrastructure to get it right next time around. Instead, it was further eroded. The mixture of lies and incompetence displayed in this decision is a big reason for this.

Originally published April 21 in The Incision. Get more at

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