Mask Mandate: DOJ to the Rescue

 

As a public service, I have below provided the government with a suitable opening statement for whatever attorney appears on behalf of the Department of Justice in its appeal of the decision in Health Freedom Defense Fund, Inc., et al., v. Biden:

May it please the court, even if the CDC’s actions were not well-grounded in science, and even conceding that there was never any review of cost-benefit, nor any consideration of alternative policy approaches and even if there was an express failure to conduct any formal rule-making as required by law during the entire two-year emergency period and even if it was a stretch to issue this mandate given the definitions and limits of the enabling statutes, it is the position of the United States, we should preserve the legal posture that this was a valid course of action in case there is another emergency in the future in response to which the CDC might actually choose to rely on science.

It is conceded that cloth and surgical masks are entirely ill-suited for suppression of any respiratory viral community spread but allowing their use as a means of conformity with the mandate affirms the perception of the pre-eminence of federal health authorities, sustains a visual confirmation of sustained emergency conditions and fosters a generalized acquiescence in a program that appears to be science-based.  Such a response by the general public would be desirable and beneficial if the CDC were at some time in the future to actually operate on a scientific basis in response to a health emergency arising within its purview.

It is also conceded that the CDC will likely drop the mandate in the near future after a careful peer-reviewed appraisal of polling data concerning the mid-term elections.  However, the CDC should retain the exclusive right to end whatever mandates it has imposed in order to preserve the appearance of scientific authority exercised in the public interest.

We would ask the court to ignore all arguments by the appellees or their amici about the state of the actual science and the relative ineffectiveness or outright damage wrought by CDC actions and decisions as a whole because this case is not about the science or whether the science was followed nor about the actual legal authority of the CDC in this matter but about the authority of the federal government to claim to act in the name of science in case it actually might be acting in the name of science in the future. 

Thank you.

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  1. Bryan G. Stephens Thatcher
    Bryan G. Stephens
    @BryanGStephens

    yep

    • #1
  2. Ekosj Member
    Ekosj
    @Ekosj

    It is the position of the United States, we should preserve the legal posture that this was a valid course of action because we are planning to utilize a similar course of action to have the CDC regulate the behavior of private citizens in response to the public health emergency of Climate Change.

    • #2
  3. DonG (CAGW is a Hoax) Coolidge
    DonG (CAGW is a Hoax)
    @DonG

    I hope they appeal to the Supreme Court, so that Clarence Thomas can kill forever this idea of the CDC making arbitrary rules.

    • #3
  4. Henry Racette Member
    Henry Racette
    @HenryRacette

    Yes, I see. So, when was it that you first realized that you wanted to kill Grandma?

    • #4
  5. Susan Quinn Contributor
    Susan Quinn
    @SusanQuinn

    Well done, OB, well done!

    • #5
  6. Arahant Member
    Arahant
    @Arahant

    It was better in the original German.

    • #6
  7. JimGoneWild Coolidge
    JimGoneWild
    @JimGoneWild

    It’s too clear and concise for a government legal appeal. Not enough jargon, double speak, trapdoors, legalese and lacking in acronyms. 

    • #7
  8. kedavis Member
    kedavis
    @kedavis

    JimGoneWild (View Comment):

    It’s too clear and concise for a government legal appeal. Not enough jargon, double speak, trapdoors, legalese and lacking in acronyms.

    You mean it’s TCACFAGLANEJDSTLALIA?

    • #8
  9. Flicker Coolidge
    Flicker
    @Flicker

    kedavis (View Comment):

    JimGoneWild (View Comment):

    It’s too clear and concise for a government legal appeal. Not enough jargon, double speak, trapdoors, legalese and lacking in acronyms.

    You mean it’s TCACFAGLANEJDSTLALIA?

    I used that acronym just the other day.  No one understood it.  It was too concise, I suppose.

    • #9
  10. Rodin Member
    Rodin
    @Rodin

    I wonder what Einstein in the Biden Administration decided to appeal the judge’s decision rather than send her “thank you” flowers? They could have taken the position that the ruling was erroneous and non-precedential as a district court decision and the mandate was about to expire anyway. But, no! They step on the rake to ensure that no frequent flier will vote for a Dem in November.

    • #10
  11. Old Bathos Moderator
    Old Bathos
    @OldBathos

    Rodin (View Comment):

    I wonder what Einstein in the Biden Administration decided to appeal the judge’s decision rather than send her “thank you” flowers? They could have taken the position that the ruling was erroneous and non-precedential as a district court decision and the mandate was about to expire anyway. But, no! They step on the rake to ensure that no frequently flier will vote for a Dem in November.

    This outfit sided with pervert teachers, insane eco-warriors, the Taliban and Iran so why not mask-Nazis? Never miss a chance to offend or injure the normals.  

    • #11
  12. kedavis Member
    kedavis
    @kedavis

    Old Bathos (View Comment):

    Rodin (View Comment):

    I wonder what Einstein in the Biden Administration decided to appeal the judge’s decision rather than send her “thank you” flowers? They could have taken the position that the ruling was erroneous and non-precedential as a district court decision and the mandate was about to expire anyway. But, no! They step on the rake to ensure that no frequently flier will vote for a Dem in November.

    This outfit sided with pervert teachers, insane eco-warriors, the Taliban and Iran so why not mask-Nazis? Never miss a chance to offend or injure the normals.

    And yet I expect still at least 40% of voters would vote the same way again.  It’s a disgrace.

    • #12
  13. Fake John/Jane Galt Coolidge
    Fake John/Jane Galt
    @FakeJohnJaneGalt

    An unconstitutional mask mandate goes in and it takes the government 2 years to strike down.   Yeeaahh  freedom.

    now if it was something serious like one county on backwater sticks had an issue with SSM it would take about 5 seconds to revoke.

    • #13
  14. Henry Racette Member
    Henry Racette
    @HenryRacette

    Rodin (View Comment):
    I wonder what Einstein in the Biden Administration decided to appeal the judge’s decision rather than send her “thank you” flowers?

    I can see how it might be a good straddle for them. On the one hand, there’s a good chance it’ll die on appeal, and the administration can tell the people of the mask that they did all they could — while still putting an unpopular and ineffective policy to bed once and for all.

    Of course, if this bold young attractive female judge is overturned, Brandon et al will have egg on their collective face. But by the time that’s all worked out the CDC will have a chance to update “the science” and conclude that the run of COVID Mask Theater is over.

    • #14
  15. Sisyphus Member
    Sisyphus
    @Sisyphus

    kedavis (View Comment):

    JimGoneWild (View Comment):

    It’s too clear and concise for a government legal appeal. Not enough jargon, double speak, trapdoors, legalese and lacking in acronyms.

    You mean it’s TCACFAGLANEJDSTLALIA?

    So I searched the Internet for this acronym and, beyond the usual ads, the only search result was this Ricochet thread. Well done.

    • #15
  16. kedavis Member
    kedavis
    @kedavis

    Sisyphus (View Comment):

    kedavis (View Comment):

    JimGoneWild (View Comment):

    It’s too clear and concise for a government legal appeal. Not enough jargon, double speak, trapdoors, legalese and lacking in acronyms.

    You mean it’s TCACFAGLANEJDSTLALIA?

    So I searched the Internet for this acronym and, beyond the usual ads, the only search result was this Ricochet thread. Well done.

    Nice to see that ricochet gets into those searches.

    • #16
  17. Old Bathos Moderator
    Old Bathos
    @OldBathos

    Can’t satirize these people without it coming true.  Here is Dr. Tony Fauxi:

    The principle of a court overruling a public health judgment by a qualified organization…is disturbing in the precedent it might send.

    The law is irrelevant if the credentialed elite has a contrary opinion.  Got it, your worship, sir.

    The entirety of CDC guidance on schools was a political gift derived from White House deference to teachers’ unions.  From the citations of bonus mask studies to those promoting the absurd claims that vaccine immunity is longer-lasting than naturally acquired immunity, the CDC has invariably moved to support the politics of the moment as preferred by Democrats contrary to the science or public welfare.    

    • #17
  18. Full Size Tabby Member
    Full Size Tabby
    @FullSizeTabby

    Henry Racette (View Comment):

    Rodin (View Comment):
    I wonder what Einstein in the Biden Administration decided to appeal the judge’s decision rather than send her “thank you” flowers?

    I can see how it might be a good straddle for them. On the one hand, there’s a good chance it’ll die on appeal, and the administration can tell the people of the mask that they did all they could — while still putting an unpopular and ineffective policy to bed once and for all.

    Of course, if this bold young attractive female judge is overturned, Brandon et al will have egg on their collective face. But by the time that’s all worked out the CDC will have a chance to update “the science” and conclude that the run of COVID Mask Theater is over.

    By appealing, the Biden Administration is taking a risk that may jeopardize a bunch of other CDC actions. The Court of Appeals (or the Supreme Court, should it get that far) finds that the enabling legislation for the CDC is much narrower than the Biden Administration has assumed and asserted. As it is, I understand the judge here followed pretty closely the reasoning that the Supreme Court had used in striking down the CDC-directed rent moratorium. A Court of Appeals (or Supreme Court) ruling on the mask mandate could end up effectively invalidating other CDC directed mandates (and possibly even mandates from other agencies, depending on how the court addresses the statutory construction issue). 

    • #18
  19. Old Bathos Moderator
    Old Bathos
    @OldBathos

    Full Size Tabby (View Comment):

    Henry Racette (View Comment):

    Rodin (View Comment):
    I wonder what Einstein in the Biden Administration decided to appeal the judge’s decision rather than send her “thank you” flowers?

    I can see how it might be a good straddle for them. On the one hand, there’s a good chance it’ll die on appeal, and the administration can tell the people of the mask that they did all they could — while still putting an unpopular and ineffective policy to bed once and for all.

    Of course, if this bold young attractive female judge is overturned, Brandon et al will have egg on their collective face. But by the time that’s all worked out the CDC will have a chance to update “the science” and conclude that the run of COVID Mask Theater is over.

    By appealing, the Biden Administration is taking a risk that may jeopardize a bunch of other CDC actions. The Court of Appeals (or the Supreme Court, should it get that far) finds that the enabling legislation for the CDC is much narrower than the Biden Administration has assumed and asserted. As it is, I understand the judge here followed pretty closely the reasoning that the Supreme Court had used in striking down the CDC-directed rent moratorium. A Court of Appeals (or Supreme Court) ruling on the mask mandate could end up effectively invalidating other CDC directed mandates (and possibly even mandates from other agencies, depending on how the court addresses the statutory construction issue).

    I would be surprised if it went to SCOTUS because (a) it will likely be moot by then and (b) if the appeals court unholds on the issue of failure to do a formal rulemaking with public comment etc. that would not reach the issue of CDC’s actual statutory authority anyway.

    If CDC had done its thing on an emergency basis initially and then gone ahead and touched the procedural bases to do a formal rulemaking, any subsequent litigation would be cleaner with both the statutory authority issue better defined and with some clarity as to whether the agency addressed all the substantive challenges to its scientific and policy judgments–all on the formal record.

    As it is, they made a hash of it and I doubt the Supremes want to deal with that mess.  Maybe some single issue will emerge that interests them but I kinda doubt it.

    • #19
  20. kedavis Member
    kedavis
    @kedavis

    Old Bathos (View Comment):
    As it is, they made a hash of it and I doubt the Supremes want to deal with that mess.  Maybe some single issue will emerge that interests them but I kinda doubt it.

    There are some things they need to deal with whether they’re “interested” in them or not.  They shouldn’t be 9 Ann Applebaums in robes.

    • #20
  21. Fake John/Jane Galt Coolidge
    Fake John/Jane Galt
    @FakeJohnJaneGalt

    Question.  Now that the court has decided the forcing of wearing of masks is unconstitutional.  Where can I sue to get my time back?  My inconvenience back.  Or how about some money?  I would even settle for the unconstitutional Aholes that forced this thing to lose their positions / jobs in government.  So where is the recompense for forcing people to do something they had no legal right to force?

     

    • #21
  22. kedavis Member
    kedavis
    @kedavis

    Fake John/Jane Galt (View Comment):

    Question. Now that the court has decided the forcing of wearing of masks is unconstitutional. Where can I sue to get my time back? My inconvenience back. Or how about some money? I would even settle for the unconstitutional Aholes that forced this thing to lose their positions / jobs in government. So where is the recompense for forcing people to do something they had no legal right to force?

    Sshhhh, next you’ll be expecting them to do something about fraudulent elections!

    • #22
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