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Judge’s overturning of travel mask warrant underscores CDC’s limited power


The role the federal government plays in containing future outbreaks will depend on the outcome of an appeal of this week’s court ruling that overturned the mask mandate for travelers on airlines, trains and public transit systems. from the country.

A Florida federal court judge says the Centers for Disease Control and Prevention exceeded its authority by requiring masks on public transportation, a mandate legal experts considered well within the agency’s charge. prevent the spread of COVID-19 across the country. .

LOOK: A judge struck down the travel mask warrant. Here’s what that means for you

The CDC said late Wednesday that it had asked the Justice Department to appeal the decision — a decision the DOJ left up to the agency. This will put the matter before one of the most conservative appeals courts in the nation, the 11th U.S. Circuit Court of Appeals.

Public health experts fear the decision, unless overturned, will hamper the agency’s ability to respond to future outbreaks.

“If the CDC can’t impose a non-intrusive mask-wearing requirement to prevent a virus from spreading state-to-state, then it literally has no power to do anything,” said Lawrence Gostin, expert in public health law, director of the O’Neill faculty. Institute for National and Global Health Law at Georgetown University.

The outcome of the call will determine what the agency does the next time an outbreak occurs. And the ongoing debate highlights a lesson in civics: the United States entrusts most of the responsibility for public health measures to the States. The federal role has been more limited but could be further clarified by Congress.

“Congress has the power to pass legislation,” said Tony Woodlief, executive vice president of the State Policy Network, a coalition of mostly conservative and libertarian groups. “If they think the CDC doesn’t have enough power, give them more. If they think there is too much, they should reduce it.

But the case also comes as Congress — and the country — remains sharply divided on just about everything COVID-related, so passing any kind of legislation could prove impossible. This leaves it up to the courts to interpret what is already on the books.

The latest case, filed in Florida by a group opposed to medical warrants, involves a federal law called the Public Health Service Act of 1944. The law gives federal officials the power to make and enforce regulations to prevent the spread of communicable diseases. These could include “inspection, fumigation, disinfection, sanitation” and other measures which, in its “judgment, may be necessary”.

Trump administration-appointed Judge Kathryn Kimball Mizelle to the U.S. District Court for the Intermediate District of Florida ruled Monday that the CDC exceeded its authority under that law. Much of his ruling deals with whether the masks meet the definition of a “sanitation” measure.

Federal judges are often called upon to consider whether a federal administrative action meets legal requirements. Mizelle’s decision, while giving a nod to the importance of controlling the COVID outbreak, said wearing a mask “doesn’t clean anything” and at most only “traps droplets of virus,” concluding that it “neither ‘disinfects’ the person wearing the mask nor ‘disinfects the conveyance.’

This is not the first time during the pandemic that the CDC has seen its authority questioned. The agency suffered a blow last year when the Supreme Court said it had overstepped its bounds by imposing an eviction ban during the pandemic.

Jonathon Hauenschild, of the conservative political group American Legislative Exchange Council, sees links between the deportation and mask mandate cases. “The CDC has used its authority or at least argued that its authority should extend to far broader public health emergency responses than it has actually been granted,” he said. The recent decision, Hauenschild argued, simply offers a more precise definition of the powers available to the CDC and local jurisdictions — even in an emergency.

“What this case does is it kind of establishes a baseline that says, ‘We’re going to hold public health authorities to their statutory attribution of authority,'” he said. “It’s an important distinction because state legislatures or even Congress have weighed the policy implications. They realized that there is a balance here.

Other legal experts say this case is a little different because the CDC’s authority over interstate travel is clearer than any power it might have over rental units. “The transport mask mandate was a classic example of the CDC mandate and its legitimate powers,” Gostin said.

Meanwhile, the requirement to wear masks on planes, trains and subways is suspended – and major airlines wasted no time in telling domestic passengers they can take them off.

States, not the federal government’s CDC, have the broadest authority over public health efforts to control the disease. Their public health agencies, or elected officials, have a range of authorities, including the ability to require masks in schools or businesses. Governors can issue stay-at-home orders during public health emergencies. And health departments routinely track outbreaks of communicable diseases and inspect restaurants for pathogens or vermin.

But states do not have authority over interstate commercial flights.

READ MORE: Florida judge strikes down national mask mandate for planes and other travel

“Public health is primarily governed at the local level, but as soon as a disease crosses a state line or crosses our national borders, the federal government has a role to play,” said Dr. Georges Benjamin, executive director of the American Public Health Association.

The pandemic has even challenged the authority of the state. Backlash from local mask mandates and other requirements has prompted more than half of states to reduce the powers of public health officials.

“One day there will be a really scary virus coming to the shores of the United States and we will look to the CDC for protection and what we will find is an agency that is afraid to act, shy, and always looking over his shoulder,” Gostin said.

He and other public health experts have said it may also be time for Congress to review and clarify the agency’s authority.

“Traditionally, the CDC has had very little power,” said Glen Nowak, co-director of the Center for Health and Risk Communication at the University of Georgia. He spent more than a decade working in communications at the CDC, including during the 2009 H1N1 flu pandemic.

“Most of what the CDC does is really ‘Here’s our recommendation – we strongly urge you to comply,'” he said. “And then it’s usually up to national and local health departments or states in general to determine how you’re going to achieve high compliance.”

But such recommendations rely on trust in agencies, which has collapsed during the pandemic. And, Nowak said, public health measures at all levels — federal, state and local — have landed in court, in part because of misperceptions about the American public’s willingness to comply. “Much of it was based on compliance assumptions – that there would be high public compliance, that they would share the sense of urgency and place a high priority on stopping the spread of a virus,” Nowak said.

Benjamin of the American Public Health Association said there was little time to waste. He said the reason public health officials need established lines of authority is that public health emergencies — whether it’s the emergence of a new variant of COVID-19 or of a future pandemic – require rapid action.

“We won’t have time to mess around with the courts making a decision,” he said.

KHN (Kaiser Health News) is a national newsroom that produces in-depth journalism on health issues. Along with policy analysis and polls, KHN is one of the three main operating programs of the KFF (Kaiser Family Foundation). KFF is an endowed non-profit organization providing information on health issues to the nation.


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