Remember the story of the Emperor’s New Clothes?  The tailors and courtiers who praised the style and good taste of the emperor’s clothing were all highly qualified with impeccable credentials.  The little boy who noticed – and said out loud – that the emperor was as naked as the day he was born was without credentials.  His rating: Not Qualified.

After the stirring Preamble, the first words in the Constitution are:

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

A valid exercise of legislative power must pass two tests.  The power must be granted by the Constitution (“herein”).  The power must be exercised by Congress and not by any other entity.

Despite this provision, significant legislation is enacted by the federal government through agencies created by Congress.  The agencies are granted “rulemaking” authority – the power to legislate – but they must act pursuant to the Administrative Procedure Act.

That’s the basis for the decision on April 19 invalidating the mask mandate on “transportation corridors” – airports, planes, trains, busses — imposed by the Centers for Disease Control.

This is not the first time the CDC’s attempts to regulate have been held invalid.  The CDC’s national ban on residential evictions was struck down. So was a moratorium on cruise ship operations.

The CDC’s operatives seem to believe that because they are “guided solely by science” they need not be guided by law.  In fact, they ignore both science and law.  Anthony Fauci made a public statement that judicial review of a public health order is illegitimate. (“We are concerned about that — about courts getting involved in things that are unequivocally public health decisions”.)  See Anthony Fauci Criticizes Court Ruling Voiding Federal Mask Mandate For Travel (yahoo.com)

The evidence for the efficacy of masks is laughably thin.  See: Do Masks Work? | City Journal (city-journal.org).  The CDC cherry-picks the studies they like and ignores those they don’t.  I believe they formed their conclusions before they marshaled the evidence.

However, the CDC’s position on masks was not the basis for the ruling that invalidated the transportation mask mandate.  The mandate was overturned not because of its substance but because the CDC did not follow the rules about the operations of federal agencies.

The scope of authority of a federal agency is narrower than that of Congress.  If Congress wants to enact a mask mandate, it can do so under its authority to “regulate Commerce . . . among the several States . . ..” (Constitution, Article 1, Section 8.)

We hope that when Congress acts on any subject, it will do so on the basis of reason, logic, facts, and data.  But it doesn’t have to.

Congress can impose a mask mandate because it finds the scientific evidence compelling.  Or it can act because a large mask importer is a particular friend of a committee chair.  They do that kind of thing all the time.  Remember federal subsidies for solar panels, domestic sugar, or ethanol?  The list is miles long.  As long as Congress stays within constitutional limits, Congress is empowered to enact a mask mandate for any reason it cares to cite.  It has not done so.

When an agency legislates – makes a rule – it is supposed to act in a prescribed manner.  It is supposed to derive its authority from an express statutory provision.  Rules are to be based on evidence. Before becoming final rules are to be exposed to comment from the public, including the businesses, workers, and private citizens who have to live with the consequences.  There are exceptions to the requirement for public comment, but the court held that those exceptions were not applicable to the mask mandate.

The CDC didn’t play by the rules.  It exceeded its authority and did not follow the prescribed procedure in adopting the mask mandate rule.  Its action is therefore invalid and of no effect.

This is not a case where a judge rated “Not Qualified” ignored and overturned the reasoned opinion of trained scientists who had sifted through mountains of evidence to reach a conclusion that resulted in an agency rule.

The issue is with how the CDC developed the rule, not with the content of the rule.

What was the statutory basis for the CDC’s action?  The answer surprised me.  The applicable statute dates from 1944.  It has been used to quarantine specific individuals, to destroy infected livestock, and the like.  It has not been used to control the behavior of millions of individuals who are uninfected and asymptomatic.

The statute that the CDC relied upon gives the agency the power to issue and enforce regulations necessary to “prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession.”

So far, that looks pretty good for the CDC’s position.  The trouble comes in the next sentence, which tells the CDC what it may do to accomplish the mission it has been charged with.

“For purposes of carrying out such regulations, the [CDC] may provide for such 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, and other measures, as in his [sic] judgment may be necessary”.  (The word “his” comes in because the original authority was granted to an individual, the Surgeon General.  Grammatical rules at the time used “his” to refer to persons of any sex.)

The CDC argued that the justification for the mask mandate comes down to the word “sanitation”.  The CDC has the power to sanitize areas that may be a vector for transmission of disease.  The CDC accomplished sanitation of airports, planes, trains, and buses by requiring everyone who enters any of those facilities to wear a mask.

Imagine that you hired a cleaner to sanitize your bathroom and their response was to place a sign on the door saying “No entry without a mask.”

That is the situation the American public finds itself in.  We hired the CDC to supervise the sanitation of areas that may be prone to the spread of infection and they ordered us to wear masks if we want to ride a bus.

The Justice Department will appeal the ruling from the “Not Qualified” district court judge.  Was no one in the department willing to point out that the ruling is eminently correct and that the CDC overstepped its authority?  No, they were too well qualified to take that position.

The department will take the case to the fifth circuit in search of judges who have the desired qualifications.

No matter the outcome, anyone who wants the protection of a mask is free to wear one.  Only if the “Not Qualified” judge is upheld do the rest of us get to assess risks and make a decision for ourselves, as free people living in a self-governing republic.

To repeat the words of Ronald Reagan, “We are a nation that has a government – not the other way around.”

Or are the words of Benjamin Franklin more to the point?  At the end of the Constitutional Convention in 1787, he was asked what kind of government the convention had produced.  His answer was “A republic if you can keep it.”

Gerry Bresslour