Justice Department Appeals to Get Masks Back on Airlines, Buses, and Trains

I am not a gambling man.

As an investor, financial data analyst, and rock climber, I may appear on the surface to be a massive risk-taker, but in fact I see myself as a proactive risk-manager. It’s critical to know the stakes of the game, and to manage all the risks we can. Sometimes, that means keeping money in bonds or REITs, taking my rock-climbing gear for a hike to the cliff and back without ever climbing rocks, and choosing to stay inside instead of skiing on unstable snowpack.

Meanwhile, the CDC, goaded by a community of epidemiologists firing tweets from their armchairs, is proving to be quite the gambler, going so far as to take a loan on our administrative state in its latest game of public health policy roulette.

The world’s epidemiologists first displayed an uncanny appetite for gambling when they manufactured consent for the containment of COVID in 2020. At the time, we had vaccines in development that were positioned to undergo phase 3 trials, but we had no proof that these vaccines would work. The prior history of vaccines for coronaviruses was not promising. Despite decades of monitoring strain evolution and developing real-world vaccines, our influenza vaccines averaged ~30% effectiveness at reducing infections, and we had never before seen a coronavirus vaccine make it through phase 3 trials.

The stakes of the vaccine gamble were extraordinarily high as containment policies carried massive costs. From just our brief lockdowns, and the whack-a-mole lockdowns occurring sporadically throughout Europe, it was clear that tens of millions of people predominately in Africa and Asia would be severed from our contracting global trade networks, and these people would starve.

Up to 120 million people were at risk of facing acute hunger if we pursued aggressive containment policies through all of 2020, and thankfully (or tragically, if your not a gambler and your bleeding heart still beats), only >20 million people were thrown into acute hunger and >100 million kids thrown into multidimensional poverty.

The vaccine gamble didn’t quite break even. While vaccines were shown to be safe and effective, the world’s control groups – South Dakota, Florida, Sweden, among others – already saw their pandemic COVID outbreaks come and go prior to the arrival of vaccines, with much lower mortality than estimated by vaccine gamblers had estimated. It’s not clear vaccines saved “millions” of lives in the US. They clearly saved many during the Delta wave, but there’s no solid evidence they saved “millions” in the US, whereas entering into this gamble with containment policies clearly sent tens of millions into hunger, over a hundred million kids into poverty, caused millions of kids to drop out of school, caused a mental health crisis in children, and more.

Just when we thought the pandemic was over, and epidemiologists would retreat to sharing fantastical compartmental models in dusty journals, the CDC has croaked back into our lives with yet another high-stakes gamble. Instead of gambling on vaccines, this gamble is on masks on planes, a slightly more important topic of public health than Snakes on a Plane. Slightly. Like the vaccine gamble, the stakes of the Masks On A Plane gamble are much higher than the gamblers are letting on.

To bring you up to speed, amidst the vaccine gamble the CDC issued a rule requiring travelers wear masks on planes, trains and automobiles. As vaccines became widely available in the US at the expense of vaccine availability in low-income countries, and after Pfizer and Moderna pocketed billions of dollars of American taxpayers’ hard-earned money, the mandate was set to expire.

Then, in April 2022, almost a year and a half after cases peaked in South Dakota, but following a series of outbreaks driven by novel variants capable of evading immunity from vaccines, the CDC extended its masks-on-a-plane order.

Meanwhile, the Health Freedom Defense Fund had filed a case against Joseph Biden in his capacity as President, arguing that the CDC exceeded its statutory authority when requiring masks-on-a-plane. The plaintiffs didn’t like masks, arguing that their anxiety and other conditions aren’t included as exemptions in this mandate, and so the plaintiffs have standing because the CDC imposed a legal obligation for these people to wear masks on the plane despite the plaintiffs not liking masks and having decent reasons for not liking masks.

A Florida district court judge sided with the Health Freedom Defense Fund, arguing the CDC exceeded its statutory authority. Like any 59-page ruling, there’s a lot going on in the judge’s ruling. If you zoom in with the same myopia with which we zoomed in on COVID at the expense of poverty and hunger in 2020, you see the judge’s argument against the CDC’s definition of “sanitation”. As everyone talked exclusively about COVID in 2020, now pundits talk exclusively about “sanitation”, saying the ruling’s definition of sanitation is too narrow.

Sanitation seems important because under the ancient Section 264 of the Public Health Services Act of 1944, the CDC the power to enforce regulations that “in its judgement” are necessary to prevent the spread of communicable diseases. Specifically, this section “informs kinds of measures that could be necessary: inspection, fumigation, disinfection, sanitation, pest extermination, and destruction of contaminated animals and articles.” 

So, now everyone’s talking about sanitation, and in their serial myopia they’re missing a bigger picture. Athony Fauci, the head of NIAID and controversial figurehead motivating the vaccine gamble of 2020 while coordinating with the head of NIH to orchestrate devastating take-downs of people who didn’t like that gamble, argued that “the court overruling a public health judgement… is a disturbing precedent.” In part goaded by a field filled with myopic gamblers, the CDC appealed the Florida district court’s decision critiquing the definition of sanitation.

The CDC’s briefing, in efforts to defend its broader definition of “sanitation”, appeals to the next topic of serially myopic media coverage, monkeypox, saying this law is used “to prohibit the capture, distribution, or release of certain animals to prevent the spread of monkeypox.” Of course, that action is well covered under “pest extermination, and destruction of contaminated animals”, and not at all related to “sanitation”, but who cares about the specifics at this point? There’s another scary virus made scarier by massive media coverage, and public health authorities want more public health power.

What the magicians are distracting us from in this act, however, is that the stakes are much larger than the definition of “sanitation.” While some argue the stakes are so high because “sanitation” is so important, the stakes are, in fact, even higher. Sanitation is the topic of parts 1 and 2 of section A of the Florida judge’s ruling. What about part 3? That part is titled “Chevron Deference”.

Part 3 starts off noting “the government invokes Chevron deference, arguing that even if its reading of § 264(a) is not the best one, the Court should adopt it anyway.” That’s a pretty good summary of Chevron deference which, broadly, says that courts should take agencies’ words for it whenever agencies interpret their own powers. Congress passes a law saying something like “The CDC has the power to clean things” and the CDC gets the benefit of the doubt when interpreting what “the power to clean things” means.

Let’s zoom out even further, beyond COVID, beyond sanitation, and beyond the CDC. Our federal government regulates an increasingly complex society filled with risks ranging from pollutants and complex financial derivatives to foods and toys and, yes, diseases. The complexity of our society seems beyond the reach of any one person, so Congress usually sets up agencies to be filled with people devoted to specific problems. The FDA regulates food and drugs, the SEC regulates securities and exchanges, the EPA regulates all things “environment” from endangered species to pollutants, the CDC regulates diseases, and so on.

Executive agencies, at their best, have proven adept at managing our complex society. Staffed with subject matter experts for the problems under the purview of their statutory authority, executive agencies stay up-to-date on the latest developments in a way Mitch McConnell and Nancy Pelosi can’t. Rather than pretend ol’ Mitch is an expert on cryptocurrencies and Web3 despite the fact that he probably still uses AOL and a blackberry, the US Treasury Department is staffed with experts to ensure the financial security of the United States, and these experts are staying up-to-date on cryptocurrencies, DeFi, and so on.

Rather than requiring Mitch McConnell and Nancy Pelosi chime in to legislate on e.g. how to regulate novel cryptocurrencies or how to ensure financial security of DeFi credit networks, we usually “defer” to the experts in their best efforts to interpret their own “power to clean” whatever crazy innovation society cooks up and whatever mess it’s about to make. Chevron deference is the legal precedent that makes it all happen.

It’s well known that some members of the Supreme Court don’t like Chevron. Chief among them is not-Chief-Justice Brett Kavanaugh. Kavanaugh sees Chevron deference as an abdication of the court’s responsibility to interpret what Congress meant by “the power to clean”, including the court ruling that congress was not sufficiently clear. Maybe “the power” is too broad, or “clean” too ambiguous. Maybe “sanitation” is too murky. I’m not a gambling man, but I’d bet that Kavanaugh, and the majority of current Supreme Court justices who tend to side with Kavanaugh, would be as happy to overturn Chevron as they apparently are to overturn Roe v. Wade.

Zooming out, it’s easier to see the massive stakes of the CDC’s Masks-on-a-Plane gamble. While they’re focusing on “sanitation”, at stake is the very real possibility of the SCOTUS overturning Chevron. While myopic pundits talk about how a narrow definition of “sanitation” can make it difficult for the CDC to “sanitate” in other contexts, they have not disclosed to the public the other part of the Florida ruling, that the judge basically said “F*** Chevron Deference, I’m a judge and I get to decide what a law says” and that ruling is now going up the chain towards the Supreme Court. If the myopic appeal ends up trickling through to Kavanaugh’s desk, it’s reasonable to expect he will ecstatically also say “F*** Chevron Deference” and Chevron v. NRDC will be as dead as Roe v. Wade.

At stake will be the EPA’s ability to interpret its own statutory authority to regulate pollutants, and many extractive industries will surely capitalize on this to say the EPA’s reliance on Chevron deference is no longer sufficient to determine what “clean air” means or what an “endangered species” is. Pharmaceutical and other companies may object to FDA’s interpretation of “safety” in our food and drugs. And so on. No longer will experts in executive agencies be given the deference to decide what “the power” they were granted is.

Kavanaugh isn’t evil, and it’s not necessarily a bad thing to dial back agency deference, since we’ve clearly seen in COVID that, sometimes, experts are wrong and other times experts are unrepresentative of the will of the American people. The “Endangered Species Act” is still an act passed by congress, so the real question will be to debate what “endangered” means and what a “species” is, and that may mean grizzly bears in Montana are not “endangered” and the Mexican gray wolf of New Mexico is not a “species”, and so these cornerstones of our ecosystems and cherished environmental icons may die at the hands of ranchers who don’t like them and hunters who want to shoot them while they lap water from a stream and taxidermy them in menacing poses.

However, it’s also clear that our Congress is inept at representing the will of the American people. While some believe passing the statutory ball back to Congress can jolt them back to deliberative life, that, too, is a gamble.

Yet that gamble is down the road, and will only be taken if some stubborn executive agency imposes regulations people really don’t like and gives the Supreme Court an invite to the poker table. The CDC, by appealing the ruling overturning its masks-on-a-plane mandate, is moving us one step closer to a world without Chevron.

That is a gamble I’m not comfortable with. Yet, ironically, it also reveals the limits of executive agencies. They are making a gamble unrepresentative of the will of the American people, they believe they have the statutory authority to do so, and at stake is the whole idea that agencies beyond the CDC, including agencies that have been more or less representative of the will of the people, have the power to do so.

To paraphrase Jim Jefferies, our laws are made to regulate the lowest common denominator. While Jim is great at speeding, one guy speeds and kills a family of four, and then we have speed limits. While Jim’s takes cocaine like a champ, a few people die of overdoses or get withdrawals and rob stores, and cocaine becomes illegal. While the EPA may be moderate in its reliance on agency deference, the CDC may have taken things too far with Masks-on-a-Plane mandates.

By forcing mandates that many people don’t like, and by myopically sending an appeal arguing about “sanitation” towards a SCOTUS able to overturn Chevron, the CDC is nominating itself as the lowest common denominator of our executive agencies. Over a silly definition of “sanitation”, the CDC appears willing to gamble a pillar of our modern society’s constitutional law, a legal cornerstone of our executive agencies, and perhaps, should the CDC lose, its willingness to gamble will be precisely the reason why we can’t have that nice thing of Chevron deference.

Republished from the author’s Substack