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The CDC’s ‘Public Health’ Ruse

By Leslie Manookian and Harvey A. Risch

By April 27, 2023May 4th, 2023No Comments

The Centers for Disease Control are fighting for the power to make you do almost anything under the guise of “public health.” They must not succeed.

In January 2021, the U.S. Centers for Disease Control imposed a nationwide travel mask mandate for persons using conveyances and in transportation hubs. Health Freedom Defense Fund (HFDF) filed a challenge to the mandate in a federal district court in Tampa, Florida. 

In April 2022, the district court struck down the mask mandate on several grounds under the Administrative Procedure Act. Among those grounds was the conclusion that the CDC lacked the statutory authority to impose the mandate. 

The CDC appealed that ruling but conspicuously declined to seek a stay of the district court’s order. Thus, the CDC tacitly conceded that the widely hated mask mandate was not, in fact, a matter of life or death. The CDC’s real aim in appealing the ruling is to secure for itself a broad authority to regulate public health under 42 U.S.C. Section 264(a) of the Public Health Service Act.

Section 264(a) authorizes the Department of Health and Human Services, which includes the CDC, to make and enforce regulations 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. For purposes of carrying out and enforcing such regulations, [CDC] may provide for such 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, and other measures, as in his judgment may be necessary.

Reading this together with the rest of Section 264 reveals that these measures are intended to support the CDC’s quarantine and isolation authority. In other words, the statute grants the CDC a limited power to prevent infectious disease from entering the country or from crossing state lines, and imposes strict obligations on the government to ascertain that a person subject to this authority is actually infected with disease. 

Nowhere, however, does the law authorize the CDC to intrude into the lives of tens of millions of healthy Americans in response to an endemic pathogen.

The CDC claimed that the word “sanitation” justified its federal travel mask mandate, however this was but a post hoc rationale. Nowhere in the rule did the CDC mention the word “sanitation.” It only did so after the Health Freedom Defense Fund filed its lawsuit challenging the rule.

Statutory interpretation requires that words be known by the company they keep. In the case of Section 264(a), those words are fumigation, disinfection, extermination, etc. The district court concluded that what these words share in common is that they refer to active measures to identify, isolate, and destroy the disease itself. 

By contrast, the CDC argues that “sanitation” means anything related to preventing disease. But this unprecedentedly wide claim of authority offers no limiting principle. Can the CDC dictate how much sugar we can consume, regulate how much we exercise, or add vitamin D to our drinking water systems—all of which would boost our immune systems thereby enhancing protection from illness? Can the CDC mandate the use of prophylactics and other intimate hygiene measures to prevent the spread of AIDS or monkeypox? Could the CDC mandate vaccination against any given pathogen as a condition of boarding a conveyance? 

Under a doctrine of Chevron U.S.A., Inc. v.  Natural Resource Defense Council, Inc. (1984), courts are generally required to defer to a federal agency’s interpretation of an ambiguous or unclear statute that the agency is charged with enforcing. While the CDC has not invoked Chevron in its appeal of the mask ruling, Chevron nevertheless casts a long shadow over the question of the CDC’s statutory authority.

First, there is nothing unclear or ambiguous about Section 264(a)—it plainly relates to inspecting, isolating and destroying infected or contaminated “animals and articles” in pursuit of preventing the “introduction, transmission, or spread of communicable diseases.” While the statute authorizes other measures, those measures must align with the measures clearly delineated; otherwise, the rest of the words in the statute would be rendered meaningless, because any public health measure one can possibly imagine could be justified by the word, “sanitation.”

Second, the Chevron doctrine is rooted in a presumption that agencies (which are part of the executive branch) will interpret statutes in accordance with the president’s constitutional obligation to ensure that laws are faithfully executed. Chevron implicitly demands that an agency, and the administration overseeing its decisions, act in good faith. But recent history has shown that agencies cannot be trusted to do so. 

Unfortunately, recent administrations have taken advantage of Chevron deference by reaching into a grab bag of long-extant statutes and claiming sweeping powers that were never previously recognized. This increasing tendency to legislate by executive fiat has given rise to what is known as the “major questions” doctrine—i.e., when an agency claims a previously-unheralded power with major impacts on the economy or personal liberty, a court should closely examine the agency’s reasoning to determine whether the statute in question actually confers the new authority claimed by the agency. 

In the case of the travel mask mandate, there are ample reasons to conclude that the CDC did not interpret its authority in good faith. 

First and foremost is that federal public health officials never previously claimed authority to govern the conduct of millions of individuals, and never previously claimed any authority to directly impose regulations purporting to prevent the person-to-person transmission of an endemic pathogen. Likewise, the CDC failed to articulate what measure in Section 264(a) authorized the mask mandate. As noted above, the CDC only seized onto the word “sanitation” after HFDF challenged its claim of authority in the district court. 

Second, the CDC never cited any evidence that requiring millions of laymen to don a medical device would do anything to prevent the spread of an aerosolized virus. Indeed, the CDC’s own statistics from its COVID data tracker demonstrate that the mask mandate changed nothing about the trajectory of COVID-19 among the states.

While the CDC has conducted randomized controlled trials (RCTs) demonstrating lack of efficacy of masks in curbing the spread of influenza, the CDC chose not to conduct RCTs on masks and the spread of COVID-19. Surely, the burden of proof is on the CDC to justify its mask rule in advance of any rule making. 

The recent publication from the prestigious Cochrane organization, reviewing all available RCTs, showed, once and for all, no evidence that masks control the spread of viral respiratory illnesses. And dozens of additional studies demonstrate the failure of masks in controlling these infections. 

The CDC, when it issued the mandate, was also clearly aware of the harms of masking such as rapid increases in blood concentrations of C02 and concurrent decreases in oxygen levels. But the CDC failed to disclose those data and still refuses to adjust its stance. 

Against this backdrop, it is clear that our judiciary needs to vigorously scrutinize broad claims of power over our lives by public health officials, whether under the major questions doctrine (for federal agencies) or the 14th Amendment (for state agencies).

If the CDC is empowered to mask us, then CDC may dictate virtually anything in the name of a “public health” emergency. Surely, Congress never intended to grant such immense authority.

Article originally published by American Greatness.

About Leslie Manookian and Harvey A. Risch

Leslie Manookian is president of the Health Freedom Defense Fund. Harvey A. Risch, M.D., Ph.D., is professor emeritus of epidemiology at the Yale School of Public Health.