Lawyers for Health Freedom Defense Fund filed their final brief in a lawsuit that seeks to overturn the Centers For Disease Control’s order requiring masks on conveyances.
The government takes the position that the mask order is authorized as a “sanitation” or like measure under section 361(a) of the Public Health Service Act. However, the courts have consistently held that section 361(a) applies to animals, objects, or property. As well, nothing in the history of the Act or in the CDC’s regulations interpreting it suggests that a medical device worn on the face constitutes anything remotely resembling a “sanitation” measure under the Act.
“The CDC’s authority over individuals is limited to quarantine and observation of persons who are known or believed to be infected,” said HFDF attorney Brant C. Hadaway. “That authority, which falls under different subsections of the Act, has never been invoked to regulate the conduct of every person who boards a conveyance or enters a transportation hub. The CDC’s interpretation of its powers under the Act is so broad that it raises constitutional concerns.”
The CDC also failed to observe the requirements for enacting rules under the Administrative Procedure Act. The APA is intended to protect the public from arbitrary and capricious rulemaking from agencies. An agency cannot forego its procedural requirements without a very good reason.
“The CDC claimed that it did not have to submit its mask order to the usual notice-and-comment procedures for agency rule making because this was a ‘public health emergency,’” said Health Freedom Defense Fund president, Leslie Manookian. But the “emergency” had been declared a year before the mask order was enacted. “An agency doesn’t get to sit on matters for a year and then suddenly claim that an ‘emergency’ requires that it forego notice-and-comment.”
“The CDC did not even adhere to its own internal guidelines for enacting a rule that affects the states,” noted Mr. Hadaway. “For that reason alone, case law requires that the mask order be invalidated as arbitrary and capricious.”
“Defendants ascribe the lack of historical precedent for the Mask Order to their observation that “not since the [PHSA’s] 1944 enactment has the United States faced a public health threat so disruptive to the Nation generally and our transportation system in particular.”
However, Hadaway noted that “much of the disruption of the last two years – to the economy, careers, children’s education, families, and to the “transportation system in particular” – can be laid at the feet of government officials whose hubris and self-aggrandizing obsession with a single data point led them to treat the governed like subjects rather than citizens, upending the livelihoods, health, and well-being of untold millions of people. The CDC – whose “public-health expertise” laid dormant on this matter for a year until the appearance of a new Administration – has yet to provide an accounting of what, if anything, we gained from it.”
A hearing in the case is currently scheduled for April 29, 2022. HFDF is cautiously optimistic the judge will strike down the federal travel mask mandate in support the rule of law.
HFDF is grateful for all your support which makes lawsuits like this possible.
