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HFDF on The Ed Morrissey Show

By April 26, 2022October 11th, 2022No Comments

Leslie Manookian, HFDF founder and president, and lead attorney on the case, Brant Hadaway, discuss HFDF’s win against the CDC’s Travel Mask Mandate.

You can read the conversation between Ed, Leslie, and Brant below.

Ed: Welcome back to the Ed Morrissey show podcast edition. I am really pleased to introduce you to two people who know the mask mandate case inside and out because they fought it in Florida and won. Leslie Manookian of the Health Freedom Defense Fund. She’s President of the Health Freedom Defense Fund,, and my friend Brant Hadaway, who you might remember as the guy behind Strange Women Lying in Ponds, which was one of the great original blogs in the blogosphere.

He’s at the Davillier law group Brant and Leslie, thank you so much for being with us today. 

Brant: It’s our pleasure, Ed. Good to see you. 

Ed: And Leslie, let’s start with you. Health Freedom Defense Fund decides to challenge the CDC mask mandate for transit systems. This is all of the different transit systems that it applies.

We know mostly through flying in airlines, but it also applies to any other transit that crosses state lines. What made you decide to challenge this? 

Leslie: Even more than that, it actually also applies to any kind of transportation service that takes federal funds. So like my local free bus service, they were requiring masks as well because they took CARES Act funds. So, you know, the impetus behind it all was just that as soon as 2020 started to unfold, I could see where this was headed. I’ve been involved in health freedom for many, many years. A couple of decades. I made an award-winning documentary on vaccines. I suffered my own vaccine reaction. Having believed a hundred percent that they were the greatest invention of mankind and that there was no downside. And it just taught me the importance of bodily autonomy. It taught me the importance of Liberty for all. It taught me the importance of actually appropriately checked government. And so I started Health Freedom Defense Fund, and we- Brant and I, and the rest of the legal team really felt that the mask mandate was one of the most egregious violations of federal law, but also that it was the kind of tip of the spear when it comes to infringing our health freedoms. And if they could successfully literally mask /muzzle every American or almost everyone, then we were going to have a really serious, even more serious problem on our hands than we already do. And so we felt that it was a really important thing to challenge because of that.

Ed: Brant, what was it that attracted you to this case and to challenging this? Because I mean in the initial phase, right, it’s an emergency. The government gets a lot of flex from courts, usually in emergencies. And we saw this and some other cases that went to the Supreme court, but you know, this thing’s getting wearing on to two years. And, I mean, I know that I would expect at some point that they did at least try to get this through the administrative procedure properly. And if they’re going to keep extending this, I think your involvement in this was just something a little bit more than an APA violation. 

Brant: Right. Well, as you know me from way back when we were blogging, I’m very much a constitutional conservative. I believe strongly in our constitutional order. And I’ve become increasingly concerned with, as Mark Levin has. So after we put it over the years, the fact that we sort of reached a post-constitutional phase of our Republic, where more and more power is not only accrued in the federal government, but it seems to be accruing in the executive branch itself and in government agencies. And with this mask mandate, it was clearly, to me, a political decision because, remember, when Biden came into office, the COVID pandemic had been going on for a year. It had been almost a year to the day since the Trump administration had declared a national emergency and on Biden’s first, full day in office- and I should go back and, know, you’ll recall it. He made a campaign promise of instituting some sort of national mask mandate when he was on the campaign trail. And so this was a fulfillment of a campaign promise; not science or the CDC existed before the Biden administration, but he, and he entered this executive order, requiring- instructing the CDC, TSA, and FAA to implement rules, requiring the wearing a mask on conveyances and that extended to, you know, all manner of non-personal, travel conveyances, as well as transportation hubs and the CDC without going through notice and comment, entered this rule and it was published in the federal register about two weeks later.

And the reasoning behind avoiding notice and comment was in the rule that said the ongoing public health emergency. Well, as I said, it had been ongoing for a year. And so there was no reason at that point to avoid notice and comment. But moreover, as 2021 went on, there were a number of decisions that came out, limiting the scope of the statute that CDC had relied on. It relied on the same statute when it implemented the eviction moratorium. And also, when it implemented this conditional sale order, that basically shut down the cruise industry.

Ed: Right.

Brant: And the courts were, you know, pretty consistent saying, well, wait for a second, this statute is not as broad as you say it is CDC. And the cruise line opinion from judge Merryday of the middle district in Tampa was particularly useful because. It addressed the application to the travel industry to some extent and said, look, this statutory provision you’re relying on applies to animals and articles and things. And other courts said it applied to property, not people.

So, there were other subsections of the statute that detailed the limits of the CDC quarantine authority, which applied to people. So it was pretty clear that the statutory scheme was laid out. So that this section they relied on 42 USC section 2 64 a was really geared toward things and not persons.

And the court agreed with both prongs, one that it didn’t apply to this, this word sanitation, in terms of the way it was meant in the statute. And. You know, the statute only applied to articles, things, and property. 

Ed: Plus the APA, the administrative procedure act, which is, which is, you know, it’s sort of a common failing, in the executive branch too, you know, to sort of skip over steps that courts deem fairly significant.

And Leslie, I want to, I want to get back to you because I read the ruling, and I think a lot of the people who criticize this have not read the ruling. Right. And Leslie clearly agrees with me on this, but it’s a 59-page ruling. It is a very clear ruling. It’s very detailed. And I think it speaks the pushback on this speaks to not the substance of this ruling but the impact on the unlimited power that people want the CDC to have.

And I think this gets back to your original impetus for challenging this. I mean, do you feel vindicated just from the fact of how people are criticizing this ruling? 

Leslie: Well, first of all, I had, I just have to say when, when Brent Cole called me on Monday morning and told me, he’s like, are you sitting down? And I mean, I jumped for joy, and I jumped for joy for so many reasons. One because we won, of course, but secondly, then in the afternoon, we just saw, well, as soon as the ruling was released, we started to be inundated with texts and emails of videos and photographs of people, you know, ripping their masks off and flight attendants, dancing in the aisles and, flight attendants, singing and passing.

And I don’t think, I mean, for me, a mask feels incredibly dehumanizing. It’s really uncontrolled for me. I have some medical issues, which make it very, very challenging for me. But on top of that, there’s just the humanity of it. That bothers me. Right. I mean, I want to see people’s faces. I want to smile at them. I want to engage. I mean, it’s just, it’s, it’s what we are. We’re social creatures, and it literally, I felt it was really dehumanizing. So when this happened, it was a relief, but the bigger thing was just how big of a relief it was nationwide. And then, speaking specifically to your question, I think it’s so important. You know, we were all taught when we were in grade school that we have three branches of government, right? The executive, the legislative, and the judicial. And what’s really interesting to me is that I don’t think most Americans understand that there’s this kind of fourth branch that resides underneath the executive, but it’s unaccountable and unelected, and there’s almost nothing we can do about them.

And it’s just growing and growing in power and strength. And one of the things that has really been a thorn in my side since the very beginning of COVID is the mantra, trust the experts, trust the experts. And I think it’s really important to remind people that the experts brought us Vioxx. They brought us the opioid crisis.

They brought us x-raying pregnant women’s pelvises. The truth is that nobody is better positioned to determine what’s best for each and every one of us than ourselves. And an out-of-control executive branch, unaccountable to the electorate, is something that all Americans from any position on a political spectrum should fear.

And so I think it was an extremely gratifying decision for that reason as well because I think, in some ways, we really struck a blow to the administrative state. And I think that’s a really important thing if we care about this country, the rule of law, and preserving our freedoms and the accountability of government.

So I’m, you know, thrilled with it all. 

Ed: We’re speaking with Leslie Manookian from the Health Freedom Defense Fund and Brent Hadaway, my friend from Davillier Law, formerly of Strange Women Lying in Ponds. I’m never going to let that- that memory has to stay clear, but I wanna stick with Leslie here because I want to follow up on something you just said.

I mean, and, and getting back to the point of what the actual criticism of this was because I think you’re right. I mean, what we were hearing was- from people was, well, this isn’t- Dr. Fauci, for instance, Anthony Fauci went on television, a couple of the parents and said, and said, this shouldn’t be decided by courts. This should be decided by experts. And I mean, my co-blogger Allahpundit said that this was the worst Fauci soundbite yet of the pandemic for the very reasons that you’re talking about, which is a separation of powers, judicial oversight. And clearly, this is, I mean, this there wasn’t – did you even hear a substantive response to this that said the mask mandate is critical for managing this pandemic because of X, other than just the power argument?

Leslie: Let me tell you a couple of things that I think are really important to understand. First of all, 65% of the drug approver salaries at FDA are paid directly by the pharmaceutical industry. Okay. They pay user fees. The CDC takes money from the pharmaceutical industry and vested interests like the Bill and Melinda Gates Foundation. They took about $300 million last year on top of that, NIH earns in the last, I believe, 30 years, they’ve earned about $2 billion in royalties on the intellectual property to, patents, you know, for the intellectual property they’ve, they’ve developed, and I’m sharing this because they are piling on judge Kathryn Mizelle and they’re doing that because I don’t think they want the public to know what’s really going on, which is that these agencies have been captured by the industry they’re supposed to regulate.

And so, you know, the best defense is a good offense, right? We’re going after Judge Mizelle, saying she’s too pretty. Now, of course, when President Trump, when then-candidate Trump. Criticized his opponent. He was rightfully- he criticized female opponents’ appearance. He was rightfully condemned for doing so by the media, but the media has been silent on this.

[00:12:40] And, in fact, they’re engaging in it. They’re calling her too pretty, too young. She’s a Trump appointee, she’s conservative, all these kinds of things. When all of the cases were going to the ninth circuit to try and attack President Trump during his during his presidency, nobody was calling out what the partisan leanings of those judges were or anything like that. And yet they’re piling on this. And I think that what it really speaks to is that they don’t have a lot to argue. And so they’re resorting to ad hominem attacks. And I think that they’re very concerned. The DOJ has said specifically that they want to preserve the power and authority of CDC. That was one of the primary points in the statement that they released.

And then Fauci, the other date, specifically said, you know, we need to preserve this authority and, you know, he said, we can’t have judges- these judges and courts overruling public health authorities. This is a problem. I think they’re just doing it, you know, going after her and criticizing her without having any understanding.

The other point I would make, Ed, which I think is really important, is that my own local newspaper somehow construed that we were claiming that the CDC was using police powers. Okay. And they were doing this to make us look like alarmists or to twist what we’re really arguing. And the truth is that the constitution reserves police powers to the states specifically.

And part of the police powers are the health powers. Okay. And so we didn’t argue that the CDC was, you know, deploying police powers the way that they wanted to make it sound right. They want to make it sound extremist that we’re crazies. What we said was that they were overstepping their statutory authority and that they were asserting power.

That’s been reserved to the states. And this is another thing. And so they don’t have anything to say about the substance of our arguments. And so they resort to these really inappropriate and, frankly, misogynist criticisms of Judge Mizelle, who, if you ask me the best word to describe her, her ruling was meticulous.

Ed: Meticulous. Meticulously crafted, even if you disagree with her definition of sanitation, which I think is going to be the basis of an appeal. I’m going to talk to Brent about that in a second. She did her homework, and she followed Brant the script that was basically laid out in the eviction moratoria. I mean, this is nobody should be surprised by the outcome of this case, right? After watching what the Supreme Court did with the eviction moratoria. 

Brant: Yeah. It w what I think happened here was that when CDC instituted the mandate, they didn’t yet have the benefit of these decisions that were percolating in the courts, construing that statute, the main- the only significant case that had proceeded. This was back, I think, in the seventies or eighties, and it concerned a case in Louisiana ban where the FDA relied on this same statute to ban the interstate sale of these little pet turtles. You may remember almost everybody had the back in the seventies to stop the spread of salmonella, and the court then focused on the first sentence of the statute, which is quite broad, and say, well, you know, the power here is quite broad. And so this seems to fall within it, and that’s okay. But then after the mandate was, entered, you had the eviction moratorium cases, which were going through more than percolating up through the district courts and the circuit courts. And then you had this cruise line case that dealt with the same provision of the statute, and the Supreme court ended up affirming what the lower courts were saying, which is, well, wait a second, there’s a second sentence of the statute that is under the doctrine of words are known by the company they keep that really narrows the scope of the first sentence. And so you have to have measures that are like these innumerate adventurous in the second sentence of which, which included things like inspection, sanitation, fumigation, disinfection, and these are all actions that you take and apply to things, animals and objects, not people. And in any event, if you’re going to do something CDC, your power and your authority to do anything is governed by these words or words that are kind of similar to those words. And so, by the time we got to briefing this case, the government was kind of stuck, and they just- what to me it was a classic example of posthoc rationale. They seized onto the word sanitation and said, okay, well, masks are a sanitation measure. And they relied on this dictionary definition of sanitation. We actually went back and looked at the contemporaneous regulations, international regulations, and U.S. Regulations under that statute, you know, basically saying what sanitation was sanitary inspection. And they were things like, you know, derating disinfecting, fumigating and, you know, these are all things you do to, for example, the ship that arise at a court that’s suspected of harboring infected, animals or something like that. And so, you know, the judge agreed with us. This is not sanitation in any event. This section of the statute doesn’t apply to people.

Ed: So I’m going to throw this to both of you. Are you surprised to hear that the Biden administration is going to appeal this to the department of justice and the CDC in light of the fact that politically speaking, it probably benefits everybody if the mandate goes away at this point? I’ll let both of you address that however you want to address it. 

Brant: Sure. You know, it didn’t surprise me because I think what they’re concerned about isn’t the mandate coming back right now. If they were concerned about preserving the mandate, they would have moved for an emergency stay to try to stay Judge Mizelle’s ruling.

They didn’t do that. It’s obvious that something else is afoot here. I think that on its face, what they, what they’ve said publicly is what I think is the reason is they want to try to claw back what they believe to be the CDC, institutional authority, to do this or things very much like this. But it remains to be seen whether they’re actually going to prosecute this appeal. I suspect there may be some other procedural shenanigans in the works, but we’ll have to wait to see after May 3rd. 

Ed: Leslie, what’s your thought on that?

Leslie: I think it’s a really interesting move. As Brent mentioned, they didn’t file right away then they, and they also, of course, never even implemented the mask mandate for a year into the crisis, which is very peculiar if it’s so pressing. I think that they are kind of stuck between a rock and a hard place. Right. If they don’t appeal, then it looks like they don’t stand behind the mandate. And if they do appeal, then they, risk actually having another ruling against them. And, even more – you know, solidifying the precedent that’s been set with this ruling. And so I wasn’t totally surprised, but I also thought it was a little bit- I don’t know- I have to say humorous because I feel in some ways they scored an own goal. You know, for people who don’t know soccer, that’s when somebody on your team kicks the ball into their own goal. And in some ways, you know, their initial statement was, well, we’re going to wait and see what CDC does. Or concludes in its assessment of the situation.

Well, that right there says there’s no emergency because if there’s an emergency, you don’t wait for days or weeks for an assessment; you move immediately. And so I wonder if DOJ realizes that this is problematic for them, and they kind of threw CDC under the bus a little bit, and then CDC wants to preserve their authority. And then DOJ is like, okay, we’ll go forward. So I think it’s a little bit- I mean, it made me chuckle. I have to say that. 

Brant: And another interesting thing just about the political dynamic is that I heard through the grapevine from DOJ that nobody outside DOJ knew about this case. And so when it erupted last Monday, it must have really caused a great deal of surprise and consternation in the administration. And I think there was that sort of disorientation you saw for a few days while the administration got its bearings. It was very interesting to watch. 

Ed: Well, the whole thing’s been interesting to watch, right? I mean, and so, I mean, and, and to get to Leslie’s point and to throw, I’ll throw it to Brandt first and get back to, and have Leslie addressed this as well. I mean, clearly, if they really want to fix this problem, if they really want to, you know, salvage the CDCs authority to act in this manner, the correct procedure would be to go to Congress to either A: amend the enabling statute for CDC, the title 42 enabling statute, to add this authority or B: simply have Congress pass a mask mandate on its own and have it based on CDC recommendations. Nobody seems to be doing that, though, Brant, and the reason is- kind of the same reason that we have agency law in the first place. Congress doesn’t want the responsibility. 

Brant: Exactly, exactly. Yeah. You know, that’s the whole subtext here. To this whole dispute and the related disputes that have occurred with respect to other CDC and agency mandates during this pandemic is that at some point, the courts need to hold Congress’s feet to the fire and say, look, you need to do your job.

The framers put Congress in Article One because it was the first and most important power of the federal government is that as to write laws, and nobody in the media is talking about that, which is to me fascinating and less time than it takes for this case to wind its way up through the 11th circuit. And, perhaps the Supreme court Congress could easily say, you know what, CDC, you’re right. We’ve meant to give you that power. We’re going to pass a law amending the public health service act, clarifying that you do have that power going forward. Or, as you say, Institute, Specifically authorizing mask mandates under certain circumstances. Right, then we can have a discussion about whether that’s constitutional. That’s another question.

Ed: Right.

Brant: but Congress could do that, but nobody’s talking about it. 

Leslie: I think there’s more to it, though. It’s not just that they don’t want the responsibility. It’s also that the responsibility is not theirs. It does not belong to them, right? Of, for, and by the people, our rights are granted by our creator, not by Congress, not by CDC, not by anybody else. I think that’s so important for all of us to keep in mind. And the last thing I want is Congress to go and assert more power than it already has. So I think we should really tread very lightly on that.

Sure. They could fix it that way, but that’s not a fix that any Liberty-loving American would have embraced in my, in my view. But I think they have another problem too, Ed, and that is this, CDC’s own meta-analysis, meaning a big review of 14 randomized controlled trials published in May of 2020 specifically showed.

So it evaluated the impact of masking on the spread of influenza viruses and enhanced hygiene. So hand-washing and environmental sanitation, meaning, you know, cleaning surfaces and things like this. It evaluated all three of those things. Fourteen randomized controlled trials, the gold standard in scientific research, and you know, what they found? No significant impact from any of those measures. So it is very telling to me that CDC did not submit a body of science in support of their mandate. They didn’t submit a single randomized controlled trial. 

Ed: And yeah, I was going to say, I think that’s important because. You can make the argument two years ago that, they’re implementing this as a mitigating factor because they didn’t have anything else. And they just simply couldn’t do the science that quickly. Right. And they didn’t have a vaccine. They didn’t have therapeutics and all this kind of stuff. We didn’t really know what the virus was doing yet. So you can make an argument that, well, it’s an emergency; they’re going to do that in courts. Brant, I’m sure, would concur and would likely allow them some leeway on that. But you’ve got two years, you’ve got science now on this, and they still haven’t demonstrated this. David Leonhardt. I’m going to throw this back to Leslie first, David Leonhardt, the New York Times. Who’s been actually a pretty rational reporter on this wrote the same thing you just said is that you’ve got studies, and yeah, in theory, this is supposed to work, but in practice, there’s no difference between mask mandate and non-mask mandate communities.

Leslie: Yeah, they knew this in May of 2020. I need to emphasize that they published that study- a 14-study meta-analysis. They knew darn well- what they did, though, was then manufacture what are called mechanistic studies. And what that means is instead of observing what actually happens in the real world as a result of these measures, they went and shot spittle, liquid, mucus, and things out of a gun towards a piece of, and they found that, Hey, wow. Holy mackerel, it stops the spittle from flying. But that doesn’t mean anything about spread, especially when you’re looking at an aerosolized virus, and that’s what we’re dealing with. And so, um, they’ve known for a century that masks don’t have any impact. The Washington Post itself wrote that they knew in the Spanish flu that masks didn’t have any impact. It’s not that they don’t have the science; it’s that I think that they wanted a public policy to support something political rather than because of a scientific reason.

Brant: The urge to be seen doing something is, you know, what drives so much of our politics these days that a David Leonhardt article really made an important point, which we mentioned in our briefing, which is that, you know, suddenly requiring tens, if not hundreds of millions, of laymen to don personal protective equipment, which are medical devices. And instantly know how to use them and what’s appropriate and stuff. It’s really not a realistic thing to expect that it’s going to work. And the WHO had actually said back, I think it was during the H1N1 epidemic back in 2009, 2010, that, you know, requiring people to wear a can actually backfire because of the way, you know, people don’t use them properly and so forth. And so, there was that aspect of it, which, you know, to me, it was also very troubling, but they kind of comical in a way. 

Ed: Well, Brant, yeah, it’s a false sense of security, which is one of the things that David Leonhardt writes, which is, you know, it’s not doing much, but people are, are, are relying on it as though it does. And I’d argue that there might be some mild mitigation from wearing masks. My wife has immune suppressed. I don’t have a problem with people who want to wear them. There’s and there’s nothing in this that says that you can’t wear choose to wear them. It’s just that the government shouldn’t impose a mandate on mask-wearing as an entree to traveling. And because they simply don’t have the authority to do it. And I think that it’s a very important ruling. And, I’m assuming that, if this appeal actually takes place, if it, if they’re really going to press this, Leslie, I’m assuming you’re going to stay on for the full ride and you go all the way up to the Supreme court with this.

Leslie: Oh man, we’re going to the absolute end. Are you kidding? Listen, you know, lightheartedness aside, if we yield this ground, where will else will it go? Let’s be clear. You know, they could argue that banning big gulps and white sugar and things like this are beneficial to the greater good. And they are; that’s the truth. They are it is not healthy to eat white sugar. It undermines your immune system. It suppresses your immune system for hours after consuming. So, you know, from a purely public health standpoint, you would think you want to get rid of these things, right? Michael Bloomberg tried to ban big gulps, if you remember, in New York City, and he got shot down. We don’t want government having this kind of power or authority.

Where does it stop? Where, you know, where is the zone of privacy around us that has already been determined exists by the Supreme Court? Where does it stop, and where- how much are we willing to give up? And I am not willing to give up any basically because I’ve already been medically injured. I know what it’s like to have something forced on me or pushed on me that I think has no risk and then be injured by it.

And so I will stand, and I will fight until I have no more fight left because I believe that this is one of the most important principles that our country was built on. And that is on sovereignty that our bodies are ours and our rights come from our creator, not from any government entity. 

Ed: Well said, Leslie Manookian and Brant, you’re on for the full eticket. I’m almost positive here, right? I mean, this is, this is going to be a great case to be arguing if, indeed, it gets to the Supreme Court. And I kind of think that the department of justice is going to think twice about this, but if it does get to the Supreme Court, this is one hell of a case to take there.

Brant: Right? Yeah. I think- what I suspect is going to happen is that the mandate extension expires on May 3rd. And I think what they’re going to try to do. From just reading the tea leaves as they might try to tell the appellate court. Well, now the case is moved, please remand with instructions to vacate the opinion of the court below that’s under a kind of obscure doctrine of mootness. I don’t think that’s going to work for them. And if the 11th circuit rejects that argument as I think they should, if it’s raised, then they’re going to have to face the question of whether they actually want to prosecute this appeal. And, that’s going to be an interesting, sort of inflection point, but we’ll see what happens.

Ed: Not to get too deep in the weeds, but that’s what they, that’s what New York tried with Bruin and didn’t work very well for them either. That’s a completely unrelated case, but that’s what New York tried with Bruin. It didn’t work there, either. 

Brant: Uh, no. And, you know, it’s chock-full of hazards. I mean, I think we easily have five votes on the Supreme court that would support this ruling in some form. And, you know, the CDC could always go back and clean up the APA issues. They may believe that they can clean up the arbitrary and capricious aspect, even though we don’t think that there’s any way they can cure that. But they’re their real concern here is institutional authority. And that’s what they’re hoping to preserve. 

Ed: Brant Hadaway of and Leslie Manookian, who’s leading the charge here from Health Freedom Defense Fund that’s, can go to those fine websites and find out how you can help. And we’re obviously going to keep a very, very close eye on this, but in the meantime, congratulations to you both for a very important win at the district court.

Brant: Thank you. Ed, thanks for having us on. 

Leslie: Thanks so much. Great to be with you. 

Ed: Leslie. Thank you, Brant. Stay tuned. We’re going to be right back with some more from the Ed Morrissey show.