Who Was that Un-Masked Man

 

“The Supreme Court ruled last year that the CDC had overstepped its authority on a different pandemic rule. That doomed mandatory face coverings on planes.”

Yale Law School Professor Stephen Carter, April 19th (in a Bloomberg OpEd)

Even as the Biden administration is appealing the ruling of a Florida federal trial court (Trump appointee, Kathryn Kimball Mizelle) that voided the public transportation mask mandate, there are experts – like Professor Carter noted above – who believe that despite the efficacy of the mandate, the Supreme Court is likely to leave that ban in place. Carter notes, with reluctance, that the writing is already on the wall, an exceptionally relevant determination given that COVID-19 is hardly the only pandemic we are likely to face. Carter’s OpEd speaks of that Supreme Court precedent:

“Last August, in Alabama Association of Realtors v. Department of Health and Human Services, the justices rejected the CDC’s claim that the Public Health Service Act granted the authority to restrict evictions of renters during the pandemic. The court held that the statute’s language, though broad, wasn’t as broad as the government argued. The CDC’s interpretation of the PHSA, the majority wrote, ‘strains credulity.’… Which leads us to the problem: The CDC justified its transportation mask mandate by citing exactly the same language.” As President Biden has said, pending an unlikely reversal of Mizelle’s ruling, wearing a mask on public transportation is now a matter of individual choice, although where federal regulation is not relevant (e.g., a local subway), states and municipalities may have their own masking requirements.

But exactly what is “individual choice”? If one person has COVID, however mild, sits next to a child too young to be masked in a commercial flight… and exercises that “right” not to be masked, what happens to that child’s right to be safe on a confined cabin in a crowded flight? “People are not legally bound to wear masks,” White House Press Secretary Jen Psaki after the court order. “So, it is a point in time where it is up to people — it is their choice, in that regard.” The White House continued to stress that masks should still be worn. But that is optional. Airports, Amtrak trains and airline have quickly eliminated their requirements that passengers wear face coverings. The Transportation Security Administration said on April 18th that it will no longer enforce the mask requirement. Many travelers, especially with younger children, are deeply concerned.

We have seen a decline in serious cases of Omicron COVID cases, those that require hospitalization, a factor that has led many to drop mask requirements. But there are signs, currently in the Northeast, where there are contrary statistics, leading Philadelphia, for example, to reinstate its mask mandate. And then retract the order days later. Mandates that rise and fall with confusing regularity. While Carter believes in the CDC fight to maintain the right to mandate masks and other appropriate preventative measures where necessary, he feels that this train has left the station. That does not mean he concurs with Mizelle’s logic:

“From the statute’s lengthy grant of authority, the agency pointed particularly to its power to regulate ‘sanitation in the interest of public health. To determine whether the agency was right, Judge Mizell set herself the task of figuring out what Congress meant. The wordsleuth in me appreciates Judge Mizelle’s trek through dictionaries of the 1940s, but this is also where I must offer a small dissent. The judge concludes that when the statute was passed, the word referred to cleaning, particularly of surfaces and objects.

“Maybe so. But although Supreme Court justices love to quote from dictionaries, I prefer working out a word’s meaning at a given historical moment by studying popular usage of the time. Here, a wider search would have yielded a number of broader applications. One example: a Navy Department guide for sanitation officers published in 1949 defined ‘sanitation’ as ‘the successful adjustment of the environment to the body so that disease is prevented and public health is promoted.’ In short, the lexicographic picture is more complicated than the opinion suggests.”

Despite videos of wild cheering on flights as pilots, driven by some internal need to become newscasters announcing the ban immediately after the ruling, those flyers who prefer keeping the mandate outnumber those who think that their individual rights trump the justifiable fears of their fellow travelers: “An April 2022 survey, conducted via Mechanical Turk, found that while 13.8% of respondents would pay to switch a reservation from an airline with a mask mandate to one without, a whopping 32.6% would pay to switch the other way around. If these preferences predict real-world behavior, a significant proportion of travelers will mask anyway.” Carter. As I have said in many other blogs, nature and her panoply of evolving infectious agents do not care about human reactions to preventative measures. If folks won’t apply reasonable anti-infection measures, there will simply be more infections.

I’m Peter Dekom, and I am concerned about a gridlocked Congress with a powerful anti-scientific fact constituency combined with a seeming right-wing judicial proclivity to take away the CDC’s most significant tools to control and contain future pandemics.