As I explained at NBC News. Here is the gist:
Judge’s decision to scrap mask mandate rests on her tortured reading of one word
Her decision rests almost entirely on a tortured misreading of one word, “sanitation,” implying a restricted definition that defies linguistic conventions and eviscerates the plain meaning of the 1944 Public Health Service Act, which established the federal government’s authority to combat infectious diseases. Mizelle’s supporting citations are misleadingly selective, bordering on outright deception.
While Mizelle declared that the health service act “could have referred to active measures to cleanse something or to preserve the cleanliness of something” (her italics), that is a false dichotomy. The two definitions are most naturally read as complementary, not alternatives. “Sanitation” can mean either cleaning or prevention or both, depending on the context, which in this case is the prevention of a communicable disease. It is bizarre to contend that Congress intended to authorize the CDC to clean up a mess but not to prevent it. As the conservative blogger (and THINK contributor) Ilya Somin observed, Mizelle’s reasoning would prevent the CDC from enforcing a regulation against defecating on an airplane floor, limiting it to wiping up afterward.
Even worse, Mizelle simply ignored more expansive dictionary definitions from the same time period as the law’s enactment. The 1949 Merriam-Webster Pocket Dictionary, for example, has only one definition of sanitation: “Use of scientific sanitary measures to prevent disease.” Similarly, the 1937 Oxford English Dictionary (which happens to be on my bookshelf) defines sanitation as “the devising and application of means for the improvement of sanitary conditions.” Webster’s 1936 Collegiate Dictionary has words to the same effect, defining sanitation as “the use of sanitary measures.”
These definitions obviously include both cleaning and prevention, and there was no legitimate judicial reason for Mizelle to omit them from her opinion. A lawyer who pulled that stunt would be reprimanded, and perhaps sanctioned, for misleading the court. It is inexcusable from a judge.
You can read the entire piece here.
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