A judicial trainwreck.

April 20, 2022

[Audio edition here]

          The debacle over the demise of the CDC’s rule requiring masks for interstate travel says a lot about where things stand in America. The decision by a Trump-appointed judge relates only to a two-week extension of the mask mandate but raises important constitutional issues relating to executive branch powers. But sensing the mood of the nation, Biden seemed to surrender, saying “that’s up to them” when asked if travelers should wear masks. The DOJ said it would appeal the decision only if the CDC “deems it necessary.” And the CDC is taking its time in making its views known—by which time the two-week extension will have expired, and the point will be moot.

          That may be the outcome most aligned with the level of pandemic exhaustion in the U.S., but getting to this point may have inflicted severe damage on our ability to fight the next pandemic. The decision by the Trump-appointed judge “was so bad it is not even wrong.” (Credit: Wolfgang Pauli.) The ruling was a politically motivated “position paper” that ignored the law, science, and the rules of the English language. Ian Millhiser discusses this “train wreck” of a decision in his excellent article in Vox, The Trump judge’s opinion striking down the airplane mask mandate is a legal disaster. I recommend Millhiser’s article in its entirety, but the following excerpt gives you a sense of his critique:

[T]he case striking down the masking requirement, is so poorly reasoned that it is difficult not to suspect that it was written in bad faith. . . I do not believe that Judge Mizelle is as incompetent as her opinion suggests.

The most likely reading of her opinion, in other words, is that she simply disagreed with the Biden administration’s masking policy and concocted a justification for striking it down. That approach should trouble anyone who cares about democracy, regardless of what they think about mandatory masking on airplanes.

          As Millhiser explains, the judge concluded that the CDC’s power to enact regulations regarding “sanitation” extends only to “cleaning” items already infectious but does not include rules to prevent items from becoming infectious. The judge reached that ridiculous conclusion after quoting a dictionary that defined sanitation to include “the use of sanitary measures to preserve health.” Under that definition, using a mask is clearly a “sanitary measure to preserve health.”

          The Trump-appointed judge did not care about these nuances; she wanted to end the CDC’s mask mandate without regard to pesky legal niceties. But here is the bigger problem: the CDC’s power to regulate infectious disease derives from a statutory provision that characterizes the CDC’s authority as extending to

inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings.

          That description may have made sense when the biggest threat to public health was contamination in meat-packing plants, but we now live a global world in which emerging viruses are a constant threat. Congress should remove all doubt about the CDC’s power and stipulate that the CDC has the authority to promulgate regulations preventing the transmission of viruses between humans. At that point, not even a bad judge could stop a mask mandate.  

          None of this will help the DOJ if the CDC decides to appeal the judge’s ruling. The appeal would be heard by the Trump-friendly Eleventh Circuit Court of Appeals, which may inflict even more damage by infusing an incoherent decision with more virulent strains of anti-government logic. Republican judges—especially the reactionary majority on the Supreme Court—are looking for opportunities to drastically reduce the authority of federal agencies to promulgate regulations. Appealing a non-sensical decision over a two-week extension may not be the hill on which the DOJ wishes to fight the battle over the administrative state.  

          So, we find ourselves in another fine mess. What should we do? I recommend that you follow Katelyn Jetelina, Your Local Epidemiologist, who provides excellent analysis in an approachable format. Here is her recommendation for dealing with this latest development:

A slow roar is starting in the U.S., but the Northeast is getting hit particularly hard with transmission. It’s not clear whether this will translate to the rest of the nation. Nonetheless, the virus is mutating to continue to escape our immunity.

Together, this may be a good excuse to get your booster and start wearing a mask in increasing trend areas. And yes, this means on planes, buses, and trains too.

Follow up on the discussion of Charles M. Blow’s essay, “A Biden Blood Bath?”

          I received a lot of feedback on my article about Blow’s essay entitled, “A Biden Blood Bath?” One reader sent a note that raises a point I did not discuss:

I remain convinced our strengths are grossly under-appreciated. Just an hour ago, good ol’ Jim Carville made a telling point on MSNBC: Yes, Biden’s approval rating, currently at 43, is no better than Trump’s (42) at the same stage of his presidency.

But the major difference, as Carville pointed out, is that Trump was polling at 42 while getting 95% of Republican support. Biden’s decline has been, to a great degree, the product of a sharp drop among his Democratic supporters—to about 75%.

Clearly those voters can be won back, and even more clearly, they are unlikely GOP voters even if they “disapprove” of Biden’s “performance.”

          I agree with the reader but would take it one step further: Many Democrats are unhappy with Biden because he has failed to move further toward the progressive wing of the Democratic Party. It is doubtful that those voters would support conservative Republicans to express their unhappiness—although they might stay home. But that is a self-defeating strategy that will increase the likelihood that the progressive agenda will meet an untimely demise under a GOP-controlled Congress.

          Indeed, Senator Elizabeth Warren’s op-ed in the NYTimes makes this point. See Opinion | Senator Elizabeth Warren: Democrats Can Win if We Keep Our Word. Senator Warren catalogs the many progressive goals that have yet to be achieved under Biden. Warren mostly blames Republicans but directs some blame towards Democrats. She does so without mentioning the names “Manchin” or “Sinema”—an omission that ignores the fact that Biden tried for nine frustrating months to pass a bill that included nearly everything on the progressive wish list. The reward for Biden’s unsuccessful efforts to enact those goals was a steep decline in his popularity among Democrats.

          Implicit in Warren’s critique is that progressives may stay home if Biden doesn’t deliver quickly. That would be a rookie mistake of the first order. If progressives hope to achieve their goals, keeping Congress and the presidency out of GOP hands is Plan A. Expressing frustration or anger with Biden by staying home (or voting for fringe candidates) is an understandable instinctual reaction—but one that must be suppressed. When we vote in 2022, we will face a stark choice between two different Americas. Joe Biden and his party represent the only acceptable choice—warts and all.

Republican Accountability Project

          I occasionally receive emails from readers reminding me that I use the term “Republicans” when I really mean “most Republicans” or “Republican leadership.” Guilty as charged! I don’t always pause to note that there is a small group of Republicans who are seeking to reclaim their party from the control of Donald Trump. The high-profile examples of Liz Cheney and Adam Kinzinger in the House remind us that not everyone in the Republican Party believes the Big Lie or wants to undermine voting rights.

          A group known as the Republican Accountability Project seeks to promote the following goals:

• Support Republicans in Congress who, at great personal and political risk, are defying party leadership and defending the institutions of our republic;

• Work to unseat those who have tried to overturn a legitimate election by strategically recruiting and promoting primary challengers;

• Push back against lies and conspiracy theories about widespread voter fraud and “rigged” elections.

          Like The Lincoln Project, the Republican Accountability Project has created a compelling, razor-sharp messaging campaign to achieve its goals. RAP creates testimonials from current Republican voters who oppose Trump, offers a “Report Card” for evaluating whether GOP candidates support democracy, and runs “Courage” campaigns to support “principled” Republicans in Congress.

          I will be interviewing Gunner Ramer, the Political Director for RAP on Wednesday at 5:00 PM Eastern / 2:00 PM Pacific on Today’s Edition Podcast. Listen live to join the conversation at this link here: Republican Accountability Project. I will publish a link to the recorded podcast in Thursday’s newsletter. It should be interesting! Check it out!

Concluding Thoughts.

          A couple dozen readers sent me a link to a speech by Michigan State Senator Mallory McMorrow. A Republican in the Michigan Senate sent a fundraising letter accusing McMorrow of being a pedophile, alleging she was “grooming” kindergartners for sex. Why did McMorrow’s opponent make that accusation? Because McMorrow walked out of the Senate during a “prayer” led by the Republican legislator that attacked LGBTQ students.

          McMorrow took to the Senate floor and delivered a fiery rebuttal that has gone viral. I urge you to watch the entire speech (ten minutes) if you can. See YouTube, Sen. Mallory McMorrow shows everyone how to deal with Republican hate in powerful speech, McMorrow’s key point is this:

          I know that hate can win only if people like me stand by and let it happen.  

          Some Republicans do hateful things because they believe there will be no consequences for the actions. McMorrow’s opponent no doubt regrets that she aimed her hate at Mallory McMorrow—a courageous woman who refused to “stand by and let it happen.” If each of us had a little more of Mallory McMorrow’s passion and fighting spirit, there would be less hateful speech and the world would be a better, safer place.

Talk to you tomorrow!