Tangle - Federal mask mandates end.

Episode Date: April 20, 2022

On Monday, Florida Judge Kathryn Kimball Mizelle declared the Biden administration's Covid-19 mask mandate for public transportation unlawful. The ruling ended the federal requirement that travelers in the U.S. wear masks on airplanes, taxis, buses, trains or other mass transit.You can read today's podcast here.You can subscribe to Tangle by clicking here or drop something in our tip jar by clicking here.Our podcast is written by Isaac Saul and produced by Trevor Eichhorn. Music for the podcast was produced by Diet 75.Our newsletter is edited by Bailey Saul, Sean Brady, Ari Weitzman, and produced in conjunction with Tangle’s social media manager Magdalena Bokowa, who also created our logo.--- Send in a voice message: https://podcasters.spotify.com/pod/show/tanglenews/message Hosted on Acast. See acast.com/privacy for more information.

From executive producer Isaac Saul, this is Tangle. Good morning, good afternoon, and good evening, and welcome to the Tangle Podcast, a place where you get views from across the political spectrum, some independent thinking without all that hysterical nonsense you find everywhere else. I'm your host, Isaac Saul, and on today's episode, we are going to be talking about mask mandates and the Florida judge who just ended them for public transportation across the country. First up, though, before we jump in, we'll start off with some quick hits. Number one, the education department announced a slate of

student debt reforms that will allow millions of borrowers to reduce or wipe out debt after making payments for 20 or 25 years. Number two, Florida Governor Ron DeSantis said the state is considering terminating the special status of the municipal district that is operated by Walt Disney Company. Number three, Russian troops have captured the Ukrainian city of Kremena, one of the first victories in its new offensive in Donbass. Number four, more than 5 million people have now fled Ukraine, according to the latest United Nations estimate. Number five, existing home sales fell in March, while housing prices hit record highs despite an increase in supply.

The ruling of the judge made striking down the mandate. I haven't spoken to the CDC yet. President Biden reacting as his mask mandate for planes gets grounded. A federal judge in Florida ruling his administration does not have the authority to continue enforcing the much despised rule. The Transportation Security Administration will no longer enforce the federal mandate requiring masks in all U.S. airports and onboard aircraft. For better or worse, after 14 months of a federal transportation mask order. Feel free to exercise your freedom this morning. This morning, the country is at a pandemic turning point. On Monday, Florida Judge Catherine Kimball-Mizell declared the Biden administration's COVID-19 mask mandate for public transportation unlawful.

The ruling ended the federal requirement that travelers in the U.S. wear masks on airplanes, taxis, buses, trains, or other mass transit. In her 59-page ruling, Mizell, who was appointed by former President Donald Trump, said the CDC failed to justify its decision and did not follow proper rulemaking procedures. She also argued that a limited remedy would be no remedy at all in justifying the nationwide injunction employing a sweeping judicial order as has become more common in recent decades. In the immediate aftermath of the ruling, the Biden administration said it was unsure how it would proceed, but conceded the mandate was no longer in effect. On Tuesday, the Justice Department said it would

challenge the ruling, though it did not ask the court to stay the decision. That means, for now, federal public transportation mask mandates are no longer in place while the decision is litigated. The Transportation Security Administration, the TSA, said it would stop enforcing mask mandates at airports. Four of the largest U.S. airlines immediately announced that masking was now optional. Some made the announcement mid-flight, drawing both cheers and criticism from those on board. Uber and Lyft made masks optional for drivers and riders, and other entities like the New York City government said it planned to keep mask mandates in place for its public transit systems. National mask mandates have been in place for over a year, and travelers two years old and above have been required to wear them on nearly every kind of public transportation. It has also become a hot-button issue. The percentage of flight

attendants reporting unruly passengers on planes has spiked dramatically in the last year, and after state governments across the country relaxed mandatory masking in indoor settings and cases in the country fell in late winter, some criticized the Biden administration for continuing to extend the mandate. The public transportation mask mandate was set to expire on Monday, and the CDC had extended the mandate until May 3rd. The public health law used to institute the mandate gives the CDC regulatory authority to, quote, make and enforce such regulations as in its judgment 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. It cites actions the CDC can take, like, quote, inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, end quote, and quote-unquote other measures the CDC determines may be necessary. Judge Mizell said the power was far more limited than the CDC had understood it to be. Quote, if Congress intended this definition, the power bestowed on the CDC would be breathtaking,

she said, and it certainly would not be limited to modest measures of sanitation like masks. She said the logical implication would be that the CDC could require businesses to install air filtration systems, mandate vaccines, or require coughing into elbows and daily multivitamins. In the United States, new COVID-19 cases are up 47% over the last 14 days due to the spread of the Omicron BA.2 variant, with 50,453 new cases reported yesterday on April 19th. That is still well below where new case counts were two months ago when we were averaging over 100,000 new cases a day, or this January when we average over 800,000 new cases per day. Hospitalizations and deaths are down 4% and 32% respectively over the last 14 days as well,

though both have consistently been trailing indicators throughout the pandemic. In a moment, we're going to hear some arguments and reactions from the left and then the right and then my take. First up, we'll start with what the left is saying. The left is mostly opposed to the decision, arguing that the legal justification is poor and the public health risks are high. Some say there will be a disastrous impact for the poor, immunocompromised, and elderly. However, others say this is a gift for Democrats and it might be worth embracing. In Vox, Ian Millhiser criticized the legal justification. Mizell's opinion in Health Freedom Defense Fund v. Biden, the case striking down the masking

requirement, is so poorly reasoned that it is difficult not to suspect that it was written in bad faith, Millhiser writes. The law is broadly worded and it specifically gives the CDC the power to enact, quote, sanitation regulations that protect public health. Myzel gets around the law's broad wording largely by defining the word sanitation very narrowly and misreading other portions of the statute. Mizell begins her analysis by arguing that this list of examples limits the CDC's authority to make regulations, an assumption that, in fairness, is grounded in the Supreme Court's interpretation of the statute. Thus, according to Mizell, if the law authorizes the masking requirement, the power to do so must be found in one of the actions enumerated in the statute's list of examples.

The masking rule must be a regulation providing for inspection, fumigation, disinfection, sanitation, or something similar. But that shouldn't be a problem. The word sanitation appears right there in the statute, and the masking requirement is a classic sanitation regulation. Its whole purpose is to prevent passengers from spewing a dangerous contaminant into the air that can infect other passengers. And, as Mizell admits in her opinion, dictionary definitions of the word sanitation include measures that keep something clean. She even quotes dictionaries that provide definitions such as the use of sanitary measures to preserve health. Nevertheless, Mizell refuses to give the word sanitation its ordinary meaning, instead claiming that this word's meaning must be limited to measures that clean something,

not ones that keep something clean. In CNN, Jill Filipovich said she hates wearing masks, but is appalled they are no longer required for air travel and public transit. This decision is particularly disastrous for older adults, the ill and the immunocompromised, who still face a much higher chance of being hospitalized or even dying if they contract COVID-19. So do the voluntary unvaccinated, but they've made the decision to assume that risk for themselves. For most people, going to work or the grocery store is not optional, and many people need to take public transport to get there, Filipovich wrote. Forcing those who have done everything right except have the bad luck to be sick or old to assume the risk of contracting a potentially

fatal illness just so that people who find mass uncomfortable, myself among them, don't have to take basic precautions is an appalling level of disregard for the lives and well-being of our fellow human beings. COVID-19 is also a class-based killer. Lower-income Americans are more likely to die of it than wealthier ones. On airplanes, where the cost of tickets makes regular air travel inaccessible to low-income people, the air is cycled out quickly, reducing the risk of COVID-19 infection. That's not the case for the types of public transport that are more readily available to the masses. Buses, trains, subways. Mizell, it should be noted, was the youngest judge appointed by former President Donald Trump. She was 33 when he appointed her to sit on the federal bench for life. A majority of the American Bar Association's standing committee on the federal judiciary rated her as not qualified for the role, given that she had never tried a single

federal case and had only been a practicing lawyer for a few years. Mizell, the majority of the committee wrote, did not meet the requisite minimum standard of experience necessary to perform the responsibilities required by the high office of a federal trial judge. Matt Iglesias said the ruling was a gift for Democrats. This lingering non-pharmaceutical intervention at a time when mask rules have been dropped in virtually every other context, including in the U.S. Capitol building, has become an embarrassment at a time when the country has otherwise moved on from so-called NPIs, Iglesias said. The basic problem is that the rule itself was issued by the Centers for Disease Control and

Prevention, a scientific agency, and a conservative one at VAT. The CDC guidelines suggest, for example, that nobody should eat rare steak or runny eggs, and that a woman should not have more than one alcoholic drink a day. The science behind those calls may be sound, he added, but they are sharply at odds with the habits and values of a huge number of Americans. Fortunately, they do not have the force of law. Alcohol regulations are made by state legislatures, which ideally will be guided but not controlled by science as they make laws about public health. By the same token, a rational assessment of U.S. society would conclude there's no reason for a government-enforced mask mandate in airports when there isn't one at hockey arenas.

The only reason for it was that airports are regulated by the federal government rather than states, and the federal government's regulatory authority rested with the CDC rather than a more political agency such as the Department of Transportation. In reality, the White House should have put its foot down and lifted the rule weeks ago. All right, that's it for what the left is saying, which brings us to the right's argument. The right says Judge Mizell has a strong legal ground to strike down the rule. They argue that it is time for mandates to end given where the pandemic is. Many say there are enough non-mask mitigation efforts to rely on now. many say there are enough non-mask mitigation efforts to rely on now.

In Powerline blog, John Hinderaker said Judge Mizell had strong legal reasoning to strike down the mandate. Judge Mizell relied on three independent grounds in invalidating the mandate, Hinderaker wrote. First, she found that it exceeded the statutory authority that Congress has delegated to CDC under the 1944 Public Health Services Act. Judge Mizell engaged in a close analysis of the text of the relevant provisions and of the meaning of the word sanitation in context to conclude that the mask requirement is not sanitation within the meaning of the statute. The idea that the mask mandate constitutes sanitation within the meaning of the 1944 Act, which in the same sentence confers on CDC powers of inspection, fumigation, disinfection, pest extermination, and destruction of animals, strikes me as far-fetched. Her second ground for

invalidating the mask mandate is that it is a rule that was adopted without the required public notice and comment period, he added. In this case, the CDC simply recited the statutory standard in conclusory form without making any showing that notice and comment would, in fact, be impractical, unnecessary, or contrary to the public interest. The court understandably found this to be inadequate. Finally, Judge Mizell found that the mass mandate was arbitrary and capricious because the CDC articulated no rationale for the agency's rejection or failure to consider alternative measures or for its system of exceptions. Judge Mizell said that she considers this the closest of the three grounds on which she found the mask mandate improper, an assessment that seems correct. relaxing in a premium airport lounge? No? Then start your journey with One World, a leading

alliance of world-class airlines. Reach top-tier status with a One World member airline's frequent flyer program, and you can enjoy an array of benefits, including priority check-in and boarding, and access to nearly 700 premium airport lounges around the world. Discover more at oneworld.com. Tons of conditions apply. around the world. Discover more at oneworld.com. Terms and conditions apply. Megan McArdle said it's time for mask mandates to go. I suspect some in the Biden administration have come to the same conclusion that much of the country has reached. It is time for indoor mask mandates to end. They had to end sometime after all, and if not now, when? When people stop dying,

says a voice from the back. But that ceased to be a workable answer last summer when it became clear that the vaccines were not providing the sterilizing immunity that might have allowed us to eliminate the virus the way we have done with smallpox and polio, McArdle said. Anything short of that requires us to figure out how to live with a virus that will continue to circulate. And by live, I mean full, normal lives, not the severely restricted public activities of the past couple of years. Such measures were acceptable as temporary delaying tactics to keep hospitals from being overwhelmed, she said. They bought doctors time to figure out how to treat the virus and gave

scientists the precious months they needed to develop vaccines and treatments. Before those vaccines and treatments arrived, I was a strong advocate of stringent social distancing, and once the vaccines became available, I supported making them mandatory. Liberty is precious, but it does not include the right to spread deadly viruses to other people. But now that we have vaccines and treatments, it's time to reconsider the trade-offs we made. Policies that were appropriate when the infection fatality rate was 1 in 200 do not necessarily pass a cost-benefit test after vaccines and treatments have reduced those risks 20-fold, especially since further improvements will likely be somewhat slower and less dramatic. The Washington Examiner editorial board said the public health laws are being

applied inconsistently and illogically. If you're a migrant arrested while illegally crossing the southern border, our nation's COVID emergency will be over May 23rd. But if you borrowed money to pay for college, then the COVID emergency is still on at least through August and almost assuredly through Election Day. And if you are a Democrat in Congress, the COVID emergency conveniently ended the weekend before President Joe Biden's State of the Union address. Confusing? Absolutely. Is there some scientific evidence that can harmonize all these decisions? Absolutely not. The official reason the CDC gave for extending the travel mask mandate yet again was that it needed more time to study the new BA.2 Omicron sub-variant, which is now responsible for the vast majority of cases in the

United States. But if the past two years have taught us anything, it is that there will always be a new COVID variant to study, the board wrote. If the CDC is going to commit to keeping the travel mask mandates until every new COVID variant is fully studied, then it will never end. Other countries around the world, such as Denmark and England, have lifted their air travel mask mandates. There is no evidence of a resulting COVID surge. What little science there is on the subject shows that airborne disease transmission is not more likely on an airplane than it is dates. There is no evidence of a resulting COVID surge. What little science there is on the subject shows that airborne disease transmission is not more likely on an airplane than it is indoors, where the CDC has already said masks are no longer needed. If anything, with all the fresh air brought into planes and all the filtering of recycled air, a plane is safer than the average building.

The CDC has never presented any evidence to show that planes are riskier than an ordinary office building or restaurant. All right, that is it for the left and the right's take, which brings us to my take. As with most things COVID, anyone telling you that this is an easy or obvious decision is basically just selling snake oil. There is so much truth in all the arguments above that I personally feel conflicted about the whole thing. The legal arguments about the CDC's authority have been fought over since the beginning of the pandemic. I'm reluctant to rehash all of them again here as we've done so over and over and over again. The variance in how the Supreme Court, this Florida judge, the CDC, the Biden administration, and a slew of other federal justices view the CDC's authority on masks and vaccines

is basically proof that any strong legal mind can bend the rules to suit their whims. Yes, the 33-year-old Judge Mizell was described as, quote, unqualified by the majority of the American Bar Association's standing committee on the federal judiciary because she had never tried a federal case. But she also clerked for Clarence Thomas and was described by the same ABA as having a very keen intellect, a strong work ethic, and an oppressive resume. And ultimately, Judge Mizell's personal experience doesn't affect the strength of her argument. I don't mean to just throw my hands in the air, but there is a good argument that Judge Mizell is bending the law to fit her political beliefs, and a good argument the CDC was acting without

statutory authorization, and a lot of people smarter than I am that can decide who is right. I've said before I think the CDC is exercising broader power than it has, though federal jurisdictions like airports would be a place where it gets to exercise that power. Still, the argument that an activist judge is undermining democracy or the CDC's authority with this ruling is not convincing. At best, the CDC's sweeping mandate is controversial. The Senate, a body of elected officials, voted 57-40 last month to overturn the transportation mandates. Nancy Pelosi is refusing to take that bill up in the House, knowing it would probably divide her caucus

and ultimately pass. That's more undemocratic than what Judge Mizell did. Among the public, according to the most recent polling, 64% of all Americans support federal, state, and local government lifting all COVID-19 restrictions. Putting the legal framing aside, though, I'd rather address the not-so-simple question of, is it time to end mandates on public transportation? It seems necessary to first just note that these decisions should not be made lightly. COVID-19 has killed approximately 1 million Americans and 6 million people globally in the last two years. Case rates in the United States have plummeted in the last few months since the all-time high in January, but have ticked back up in the last few weeks.

On the whole, I think it's fair to say we are in a pretty good place with COVID-19 headed into the summer. Vaccination rates are high, natural immunity has spread, and case rates, hospitalizations, and deaths are still relatively low. We know summer is good for reducing spread. The pandemic looks to be waning. As I've said since vaccines were widely available, I did not think national mandates were a good idea. My opinion has been that mask mandates should be instituted at the state or local level according to case counts. One of the great failures of the public health agencies from the start of the pandemic has been that COVID-19 measures were rarely tied to actual goal-oriented

data. Under the old, more cautious guidelines, the CDC said anyone living in substantial or high-transmission areas should wear masks indoors. Today, that would account for about 29% of all counties, meaning that it's safe to be maskless indoors in 71% of American counties, even by the older, stringent CDC recommendations. In March, though, the CDC changed those guidelines to hinge on hospital admissions and hospital bed availability. Only counties of high risk are told to require masks indoors. Today, that is 0.43 percent of all American counties, yet the federal mandate remains in place. This transitional period has made it very unclear when COVID-19 policies are appropriate. As the Washington Examiner Editorial Board helpfully

pointed out, pandemic rules are being applied unevenly. Masking mandates have largely ended in schools, restaurants, concert halls, gyms, and other indoor arenas, but still exist in planes, trains, and cars. The COVID-19 justification for instituting Title 42 on the border is ending, but it's staying in place to continue to pause student loan payments. You need a mask on a plane, but not in the halls of Congress. When the government indiscriminately chooses when or where we're in a pandemic and when or where we're not, it effectively destroys what little trust is left in the public. And that is a huge deal, given that trust is what underpins the public health authority of agencies like the CDC. Based on everything we know, I think it is backwards to have mask mandates on flights, but not in other indoor spaces. It seems to me that the best policy would be to drop

the mandate and allow airlines to decide their own policies. Some could even offer fully mask bookings as an option. For folks who are immunocompromised or elderly, we now know that one-way masking works, if you're both vaccinated and wearing a quality mask. Planes are very well ventilated. COVID-19 treatments are widely available. Most of the country has gotten vaccinated or gotten COVID-19 or both. And amidst all that, in my recent flying experience, most people are regularly removing their masks to eat, drink, or out of discomfort. Given the quality of masks being worn and the actual practices happening on planes, I'm not sure how much good the mandate has done anyway.

There may very well be consequences for this change. In Europe, where masking has ended for some airlines, staff shortages and COVID-19 spread have caused increased chaos and cancellations in airports. Americans may soon find our already overpriced, delayed, and regularly canceled flights even more frustrating if staff begin to get COVID-19 at higher rates and have to call out of work. It's also true that airlines handled this announcement poorly. When the judge dropped the mask mandate, the appropriate move would have been to lift it on airlines in two or three weeks, not mid-flight. That way people could have made better risk

assessments and rescheduled or changed their plans based on the new environment. The fact that high-risk folks were caught by the rule changes in the middle of travel is deeply frustrating and unfair. Meanwhile, buses, cabs, and subways seem harder to navigate. In Ubers or taxis, you can put the windows down and are typically not going to be sharing the space with strangers. Most drivers now have partitions up but should still have the autonomy to decide whether their passengers mask up. Ventilation on subways and buses varies more widely than planes, but most are operating within state boundaries, so states should be allowed to decide what mandates to use based on local case counts. Altogether, while I have reservations, I think it's probably time to end a federal mandate

like this one. I may still wear a mask to fly or to take a subway, and I'd respect anyone else who decides to do the same. But given the sum total of today's vaccine rates, natural immunity rates, available treatments, lower case counts, and pulled-back masking requirements in other indoor spaces, it seems both safe to end the public transportation mandate and inconsistent to keep it in place. All right, that is it for my take. If you want to ask a question, you can do that in the newsletter by replying to it or emailing me at isaac at readtangle.com. We are skipping today's reader question again. I apologize, this just got pretty long, so we have to move on. skipping today's reader question again. I apologize, this just got pretty long, so we have to move on.

All right, next up is our story that matters for the day. According to the Wall Street Journal, the Federal Reserve is setting out to do something it has never accomplished before, reduce inflation a lot without significantly raising unemployment. As America's central bank tries to cut off inflation, it faces an economic situation unlike any we've seen. The Fed is attempting to take just enough steam out of an overheated economy to reduce the booming demand and cost of goods, but also doesn't want to set off a recession. The Fed has never lowered inflation as much as it plans to now without also causing a recession. It will require skill and also good luck, Treasury Secretary and former Fed Chair Janet Yellen said. The Wall Street Journal has the story. There is a paywalled edition linked to it in today's newsletter.

All right, next up is our numbers section. The percentage of Americans aged five and up who have at least one dose of the COVID-19 vaccine is 95%. The percentage of Americans aged 65 and up who are fully least one dose of the COVID-19 vaccine is 95%. The percentage of Americans age 65 and up who are fully vaccinated is 91%. The total number of all COVID-19 cases that have been reported in America all time is 80,526,422. The number of Americans currently hospitalized with COVID-19, according to the CDC, is 9,416. The number of patients admitted to the hospital with influenza this week, according to the CDC, is 3,170. The average

number of people dying of COVID-19 each day over the last 14 days is 410. All right, finally, our have a nice day section. This is a wild story. When Katana Garrett gave birth to her first child at just 25 weeks pregnant, two first responders who showed up during her labor were credited with saving the baby's life. Garrett was home alone in Columbia, Tennessee, when she suddenly went into labor and gave birth all on her own. She called 911 and Cody Hill, a 10-year veteran of the local fire department, arrived first at the scene to find Garrett's baby miraculously alive and breathing. Hill gave the baby CPR and turned the heat in the house up to keep the baby alive until Jamie Roan, a paramedic, arrived with an ambulance and rushed Hill and the

baby to the hospital. Six months later this week, Garrett named Hill and road godparents to Zamyla, who has now been discharged from the hospital. Good Morning America has the story. There's a link to it in today's newsletter. All right, everybody, that is it for the podcast. Before you go, please go subscribe to Tangle. Readtangle.com slash subscribe. It's the best way to support our work

and to make sure that this podcast can keep running. If you just take 30 seconds and do it, it'll be a big help to us and I'll love you forever. All right, thanks. Peace. Our newsletter is written by Isaac Saul, edited by Bailey Saul, Sean Brady, Ari Weitzman, and produced in conjunction with Tangle's social media manager, Magdalena Bokova, who also helped create our logo. The podcast is edited by Trevor Eichhorn, and music for the podcast was produced by Diet75.

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