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Wake Up To Politics - April 19, 2022

Wake Up To Politics: How the mask mandate got struck down
Wake Up To Politics - April 19, 2022

by Gabe Fleisher

Good morning! It’s Tuesday, April 19, 2022. Election Day 2022 is 203 days away. Election Day 2024 is 931 days away.

How did a judge in Florida strike down the nationwide mask mandate?

Last week, the Biden administration announced a 15-day extension of the mask mandate for airplanes and other forms of public transportation. While the mandate was set to expire on Monday, the move would have kept it in place through May 3.  

But the mask mandate ended up expiring on Monday after all.

That’s because Judge Kathryn Kimball Mizelle, of the U.S. District Court for the Middle District of Florida, struck down the mandate yesterday.

In a 59-page order, Mizelle ruled that the mandate exceeded the CDC’s authority under the Public Health Service Act of 1944, which allows the agency to make public health orders regarding “sanitation.”

“Wearing a mask cleans nothing,” she wrote. “At most, it traps virus droplets. But it neither ‘sanitizes’ the person wearing the mask or ‘sanitizes’ the conveyance.”

Within hours of Mizelle’s ruling, masks were being removed on airplanes.

All of the major airlines in the U.S. — including American, Delta, Southwest, and United — have now moved to make their flights mask-optional. (The song “Celebration” played on one flight as passengers took their masks right after the decision was handed down.)

According to the White House, the CDC continues to recommend masking in public transportation settings — but the TSA will no longer enforce the mandate, as the agencies consider whether to appeal Mizelle’s decision.

Kathryn Kimball Mizelle, the judge who struck down the CDC’s mask mandate for travelers. (U.S. government)

But the sudden reversal calls a few quirks of the American judicial system into question: After all, how exactly did a judge in Florida manage to strike down the mask mandate for traveling in the entire country?

The answer is a powerful legal tool known as a “nationwide injunction.”

Nationwide injunctions are rulings handed down by a single district judge — like Mizelle, who sits on the federal bench in Tampa — that stop the federal government from taking an action across the country. (The orders are usually temporary, only applying while challenges against the government are going through litigation in higher courts.)

As the Congressional Research Service notes, there is no federal law or Supreme Court case that explicitly allows nationwide injunctions: around the 1960s, some district judges just began handing down orders against the government that they declared were effective nationwide. Eventually, the practice became widely accepted, as seen on Monday, when the government adhered to Mizelle’s ruling.

Use of nationwide injunctions has accelerated in recent years, bedeviling presidents of both parties.

While serving as attorney general during the Trump administration, Jeff Sessions famously said in 2017 that he was “amazed” that a “judge sitting on an island in the Pacific” (meaning a district judge based in Hawaii) could make a decision that applied across the country.

In the Biden era, nationwide injunctions have been used to halt the president’s policies on vaccines, immigration, climate, and more. There have been some calls for Congress or the Supreme Court to invalidate the practice of nationwide injunctions — including from Justices Clarence Thomas and Neil Gorsuch — but so far, they have been allowed to stand.

Former Attorney General Jeff Sessions once said he was “amazed” that district court judges could have so much power. (Gage Skidmore)

The mask mandate ruling also highlights the success of Trump’s efforts to stock the federal judiciary with conservatives.

Confirmed at age 33, Mizelle was the youngest federal judge appointed by Trump. She will now serve on the federal bench for life, one of hundreds of Trump picks who will influence jurisprudence in the coming decades.

According to a New York Times report last week, Biden and Senate Democrats are planning to pick up the speed of their judicial confirmations in a bid to counter Trump’s imprint on the courts.

With control of the Senate up for grabs in November, the coming months could be Biden’s last opportunity to make his own mark on the judiciary — and to add young, liberal jurists who will be able to issue their own nationwide injunctions to block the actions of future Republican administrations.

Catch up

The other headlines you should know this morning.

The latest from Ukraine: “Russian forces unleashed a massive artillery and rocket barrage all along Ukraine’s eastern front Monday night in what Ukrainian officials say is the start of a new offensive stretching from Kharkiv in the north to Mariupol in the south.” Politico

At the border: “The U.S. has made more than a million arrests at the U.S.-Mexico border since October, the fastest pace of illegal border crossings in at least the last two decades, according to new data released Monday by U.S. Customs and Border Protection.” Wall Street Journal

Inside the GOP: “Trump Allies Continue Legal Drive to Erase His Loss, Stoking Election Doubts” New York Times

Policy brief

Every morning, WUTP’s team of contributors rotate to offer briefings on the latest news in a different policy area.

Here’s Kirsten Shaw Mettler with the top stories in education news this week:

A group of senators are calling for an investigation into income-driven repayment (IDR). IDR programs are meant to help student loan borrowers who cannot afford large monthly payments. But an NPR investigation found that these programs have been deeply mismanaged, with servicers using inconsistent payment tracking mechanisms and millions of borrowers not receiving adequate debt cancellation.

Given these issues, advocates have been calling for an “IDR waiver.” Such a waiver would be a temporary program to help borrowers receive retroactive loan forgiveness credit. This past week, Sens. Sherrod Brown (D-OH), Elizabeth Warren (D-MA) and Dick Durbin (D-IL) sent letters to Consumer Financial Protection Bureau Director Rohit Chopra and Education Secretary Miguel Cardona calling for action.

Elizabeth Warren is among the senators calling for a IDR waivers. (Gage Skidmore)

A lawsuit over a transgender athlete ban in Idaho will move forward. Idaho was the first state to ban transgender women and girls from competing on public school and university sports teams. Now, the American Civil Liberties Union and a women’s rights group called Legal Voice are suing on behalf of a a transgender athlete who hoped to compete for Boise State University. There is also a cisgender plaintiff on the case who fears the ban could lead to invasive tests for athletes to prove their biological sex.

Florida rejected 54 math books from its K-12 curriculum. The Florida Department of Education rejected 41% of the 132 math books submitted for review. 28 of these books were turned away for allegedly including “prohibited topics,” including critical race theory. A full list of the denied books has been released.

Look ahead

How your leaders in Washington are spending their time today. (All times Eastern)

Biden’s day: Receiving his daily intelligence briefing; holding a secure video call with allies to discuss the war in Ukraine; traveling to Portsmouth, New Hampshire; visiting Portsmouth Harbor; delivering remarks at the harbor; returning to Washington.

  • What Biden will talk about: Using a recent project at Portsmouth Harbor as an example, he’ll highlight how funding from the bipartisan infrastructure package went to modernizing U.S. ports and waterways — and how those improvements will strengthen the nation’s strained supply chains.

Also at the White House: First Lady Jill Biden will deliver remarks at the DC NewsBash, an annual event organized by Washington-era anchorwomen to raise money for fighting breast cancer.

At the Capitol: Both chambers of Congress are on recess this week.

At the Supreme Court: The justices will hear the arguments in George v. McDonough, which considers whether veteran Kevin George — who was diagnosed with schizophrenia one week into service with the Marine Corps — is entitled to veteran health benefits, because he claims he developed the disorder due to his military service.

  • They’ll also hear arguments in Kemp v. United States, on whether Brian Earl Kemp was too late in filing a motion catching a court’s error in its dismissal of his attempt to overturn his federal drug and firearm conviction.

Links to watch for yourself: Biden speech (2:45 pm) • George oral arguments (10 am) • Kemp oral arguments (11 am)

Before I go...

Here’s an inspirational story for you: Adrianne Haslet lost her leg in the 2013 Boston Marathon bombing.

On Monday, she returned to run the iconic marathon, this time as a para-athlete. She was accompanied by an Olympic athlete who agreed to serve as her support runner.

“It was the best day of my life,” Haslet told CBS Boston. Choking back tears, she thanked the fans who gathered alongside the marathon route: “I will remember every face and every sign and every dog and baby along that course,” she said.

Watch the video here, via CBS Boston.

That’s it for today. If you enjoy Wake Up To Politics, it’s always appreciated if you donate to support the newsletter or buy some merch. Or if you tell your friends and family to sign up at wakeuptopolitics.com.

If you have any questions or feedback, feel free to email me: my inbox is always open.

Thanks for waking up to politics! Have a great day.

— Gabe