My latest column for The Hill has new revelations about the Trump-appointed judge who vacated the CDC’s transportation mask mandate. Here is the gist:
Was mask mandate judge a hypocrite?
by Steven Lubet, Opinion Contributor - 05/02/22 11:30 AM ET
Kathryn Kimball Mizelle is the youngest federal judge in the U.S., having been appointed by President Trump in 2020, when she was only eight years out of law school. She may also be the most hypocritical. A central finding in her opinion in Health Freedom Defense Fund v. Biden, invalidating the Centers for Disease Control and Prevention’s (CDC) transportation mask mandate, was founded on the evidently purposeful suppression of key passages in her own sources. In pursuit of the enduring Republican goal of hobbling federal administrative agencies, she abandoned the tenets of the conservative legal movement, becoming an “activist judge” who “legislates from the bench.”
In fact, Mizelle strategically skipped even likelier, more comprehensive definitions from the very sources she cited. The full definition in the 1942 Webster’s Dictionary is “a rendering sanitary; science of sanitary conditions; use of sanitary measures,” with no restriction to cleaning. The definitions in the 1948 Funk & Wagnall’s Dictionary include “the practical application of sanitary science,” without excluding “measures to keep something clean.” Mizelle did not acknowledge either of these definitions in her opinion, although both would plainly cover masking. Given the brevity of the entries, there was no way for her to miss the inclusive definitions. The omissions must have been deliberate.
Exercising the opposite of judicial restraint, Mizelle issued her ruling only two weeks before the mandate’s expiration date. There was every reason to wait before preemptively invalidating the mandate for the entire country – which would have imposed only a brief delay and minimal inconvenience on the plaintiffs – if she had not been in such an activist rush to privilege her own judgment over the doctors and scientists at the CDC.
Although Mizelle once called Justice Thomas “the greatest living American,” her mentor ought not be proud of his protégé’s handiwork. She accomplished the conservative movement’s long-sought policy objective – limiting the reach of federal administrative agencies – by consciously violating its avowed values: she disdained the original meaning of the statute, concealed critical language from her own sources, elevated her policy views over those of democratically accountable agencies and imposed an activist remedy. Principles, it seems, are only for the faint of heart.
You can read the entire essay in The Hill.
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