Judging Freedom - What's Going On with the Mask Mandates

Episode Date: April 21, 2022

Hi there, everyone. Judge Andrew Napolitano here for Judging Freedom. Today is Thursday, April 21st, 2022. It's about 2.40 in the afternoon on the east coast of the United States, either late last night or early this morning, depending upon when a DOJ lawyer hit the word or hit the send button on his computer. The Department of Justice filed an appeal of the decision of the United States District Court for the Middle District of Florida, which on Monday had invalidated the mask requirements of the Center for Disease Control. So that issue is now over, the if and when and are they. The government has decided to appeal it. I think it's a mistake for Joe Biden's DOJ to appeal it, but the issues are rather subtle

and I'd like to explain them to you now. A federal judge hearing an application brought by a group of flight attendants and airline pilots, and even some flying members of the public who happen to be physicians, arguing that the CDC had no authority to order that the airlines require all their passengers wear masks, agreed with that argument. She agreed with it for two reasons. Federal law requires that when an administrative agency of the federal government, of which the CDC is one, like the FDA, the Food and Drug Administration, the EPA, the Environmental Protection Administration, when any of these entities wants to promulgate a rule, they can't just say, here's the rule. They have to publish it and give the public 30 days notice to comment on it and Congress 30 days notice to invalidate it. In this case, the CDC did not do that. The CDC just issued the rule and just emailed a copy of it to the airline saying, effective immediately, all of your passengers must wear masks. And by the way, those of you that run airlines

or airports, like the Port Authority of New York and New Jersey, which runs Newark, LaGuardia, Kennedy, and a few of the smaller airports in the metropolitan area, everybody has to wear masks when they're in the airport. And TSA, you're going to enforce this. So it sent out these rules to everybody. There was no 30-day period. So the law is when the administrative agency fails to follow the rules for making a rule, then the rule is invalid. So the judge could have stopped right there. But instead, she went further. And this is what's driving the CDC crazy. I almost said EPA.

What's the difference? A bunch of bureaucrats trying to tell us how to live. They're not publicly elected. They're not answerable to anybody but their own big government consciences. Anyway, the judge went one step further and said, oh, and by the way, the language and the statute that established the CDC did not give it the authority to tell people to wear masks. Well, there wasn't a pandemic at the time, right? But what is the CDC's charge? The CDC's charge under that statute is to enhance public sanitation. What does public sanitation mean?

That means the cleanliness and disease-free nature of public places. Does that include wearing masks? According to Judge Mazzell, it does not. So that issue is on appeal as well. Both issues are on appeal. Now, to the United States Court of Appeals for the 11th Circuit, that's the intermediate appellate court for the southeast part of the United States. Interestingly, when the DOJ, and the DOJ represents all federal agencies in federal court, the CDC has its own lawyers, but they don't go into court. They provide other legal services for the CDC,

licensing of laboratories and drugs and things like that. When the DOJ filed its appeal, it appears, I haven't seen it, but I can sort of tell from the way it's being reviewed, there was no application for a stay. That's very unusual. Ordinarily, when a judge restrains the government from doing something and the government is appealing, the government asks the judge to stay to stop to hold off on his or her opinion until the appeal can be had that's not what happened here what happened here is just an appeal was filed and it's very interesting because the the rule on in question expires in the middle of May. So if the 11th Circuit Court of Appeals does not hear the case in the next three weeks, then there is no case to be heard, and there is no rule, and there is no mask requirement. At the present time, Judge Mazzell's opinion is the law of the land,

and no airport, and no airline, and no train, and no ferry can make you wear a mask. That could change tonight. It could change tomorrow. Or it could, please God, stay the same. Judge Napolitano for judging freedom.