Legal AF by MeidasTouch - BONUS: Former Federal Prosecutor Harry Litman RIPS ‘Unqualified’ Judge for Voiding Mask Mandate

Episode Date: April 22, 2022

On this bonus episode, former federal prosecutor and host of Talking Feds podcast Harry Litman breaks down Judge Kathryn Kimball Mizelle baffling decision to overturn the federal mask mandate for travel. Subscribe to Taling Feds podcast: https://www.talkingfeds.com/ Subscribe to the Talking Feds YouTube channel: https://www.youtube.com/channel/UC_toJO3rT5L5U1CBRawV4Lw Learn more about your ad choices. Visit megaphone.fm/adchoices

Hello, Midas. Mighty Harry Littman from Talking Feds here. I wanted to talk a little bit today about this mask mandate. What the heck is going on with it and how did it begin? So okay, in brief, it's actually a great example or a terrible example, depending on your point of view of the breathtaking power of a single trial level federal judge. And as I'm going to explain, the decision itself is pretty funky, probably wrong, but her subsequent decision after finding a violation to enjoy the entire rule throughout the nation is really out there should be reversed. But right now the government's deciding whether it wants to challenge it. Okay, so the case began in July of 2021. That's important because it's not as if anything about her decision rested on the fact that cases have been waning, which of course is not fully true

in something they've been waxing and waning. So this decision would have been the same whether it was at the high water mark of COVID where everybody was wearing masks in airports as a matter of course. All right, it was brought by two people who said that they have their regular travelers and they have anxiety and wearing a mask aggravates the anxiety. Now, I don't want to like demean that, but it's just a good example. You need, if you want to come into court,

an injury, it's gotta be real, but it can be pretty light. So what do we have here? That has now brought the entire rule down to people who said, I've got anxiety and this makes it a little worse and there's no exception. That's how they got in the door. So that permitted with that injury, the court to decide, okay, is this lawful or isn't it? The court said that it was unlawful basically because the CDC grant of authority that invoked didn't actually cover it.

And here's the analysis. So the CDC relied on the Public Health Services Act of 1944. And in particular, a provision of it that says, they can make regulations to identify, isolate, and destroy diseases. Seems pretty strong so far. And with the approval of the HHS,

which they have, they can make regulations as are necessary to prevent the introduction, transmission or spread of communicable diseases from foreign countries into the state. next sentence becomes the big focus for purposes of carrying out these regulations they can provide for inspection, fumigation, disinfection, sanitation, pest extermination, and other measures of the sort. So can you see the stress points here? We're going to be looking at a sanitation and other measures. Although the judge just says, forget about the other measures because they've going to be looking at a sanitation and other measures, although the judge just says, forget about the other measures because they've got to be kind of part and parcel. So we're looking at sanitation. All right, the United States says, look, sanitation, what does sanitation mean? And by the way, here's a dictionary, it's measures that clean something or that remove or neutralize elements in curious to health. Again, seems very straightforward, right? Down, down the

middle. But the judge, and I guess let's take a second to tell you a little bit about this judge, her name is Catherine Kimball, my cell, she was put into office in the lame duck period, the youngest judge that Trump had appointed in all years. She was 33 years old. She was like seven years out of a clerkship with justice, yes, Thomas, and she was rated unqualified by the ABA. But that was because she had in try to case. I don't think the problem is that she's never, you know, she, her analysis is kind of legal. It just feels to me very conservative and activist and wrong. But anyway, so here you have the youngest judge Trump has put on

in the lame duck period who's rated unqualified. And she says sanitation, sure, the government says that, but she's got her own dictionaries and her own definitions of sanitation. And they had they basically don't go to property, she says, and don't go to mass and goes through this very long analysis of why her dictionary definition beats the United States definition. So the ultimate finding you'll hear about sanitation and the question whether sanitation counts for preventing disease. It sure seems like a normal reading of it, the judge finds otherwise.

And by the way, the judge now is, there are a lot of articles about the new folk hero on the right for basically striking this down. So she says the best definition is where you're really trying to keep things clean. And that's not what a mass does that. So she's, she says that's the better definition. All right, so a fairly tenuous ruling about why the source of authority for the CDC doesn't cut it here, but now we get to the really funky part. She decides having found that it's unlawful to enter a nationwide injunction. And here we have the amazing power of a single federal district court judge once they have the power to pass on something's lawfulness. So she says the only way to give the remedy that to the plaintiff is by

joining the entire nation. So people, you know, they took off in the air and there was a mass mandate. They landed and surprised there wasn't any anymore. And that's the state of things right now. There is the mass mandate is not applicable anywhere in the country. All right, why not? Because she says it just would be too hard to give these two plaintiffs with anxiety, the relief that they are asking for, because there's so many travelers out there. That, to me, is just nonsense and non-sequitr. You can, you know, give these two people a little piece of paper that says, hey, I don't have to follow your mandate sign, margin sign judge myself. It would be easy. I mean, we know already what's going to be happening is some people will be wearing

mass voluntarily others won't. The fact that these two get relief in no way means that it's a big administrative problem. So there it strikes me as a kind of a crazy reach, but be that as it may, that's where it stands. So what happens now? Well, the CDC had only extended it anyway for a couple weeks until May 3rd. So they may decide, let's just, you know, forget about it. And the Department of Justice may decide if we take this above her to the 11th circuit, that's a very, very conservative circuit itself, maybe even though the decision seems wrong. In fact, they've said they think it's wrong, maybe we'll just make bad law. On the other hand, what they've said as of this morning is, look, this is a health decision. That's been our sort of North Star the whole time.

If the CDC says we're gonna need this and we're gonna need this after May 3rd, the DOJ says we are ready and we've got our papers going, we will go right up to the 11th Circuit and the very first thing they'll do if you can bet is dissolve the nationwide in junctions. Say, all right, let's fight about the legality. See if she was right. But in the meantime, not shut the whole thing down, make an emergency motion to the 11th circuit to take that nationwide

in junction out of the equation. Okay, so there you have it. A couple anxious people, a very, very young judge, a kind of out there, plain meaning analysis, and a nationwide injunction. And that's where we stand with the whole thing shut down. And we'll have to see the Department of Justice is now consulting with the CDC to decide is this worth the candle of and risk of appealing. That's the story. I'm Harry Littman from Talking Fed. You can follow us on our own YouTube channel these days and also all our episodes. Carry on, Midas Mighty. Thank you.