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For a brief moment, America was the cheering mission control room in every action movie. You know the one: the flight controllers stand there nervously, waiting to hear from the wayward rocket. Then, suddenly, the radio crackles: “Houston,” says a voice, “this is Gemini One…we did it. A federal judge in Florida just struck down the mask mandate.”
And everyone goes wild.
From out of claustrophobic plane cabins and sterile airports this week came unlikely scenes of jubilation as passengers tore off their masks and breathed freely once again. Public transportation had become a kind of last holdout of the Karens; you could go to a jam-packed music festival mask-free but forget to re-cover your mouth while chewing your Amtrak-issued cheesesteak and you were liable to get chucked off of a moving train. Now, no more. Thanks to Judge Kathryn Kimball Mizelle, who voided the CDC’s mask requirement on mass transit, travelers can rip off their suffocating, reeking facial prophylactics for good.
Mizelle handed down her ruling on Monday, and instantly the Biden administration was put in a tough spot. As Politico summed it up on Tuesday, “The White House is still figuring out what to do next, weighing two very big factors: credibility and politics.”
On the one hand, if Biden did appeal Mizelle’s decision, it could damage Democrats in the midterm elections, given that the country is mask-weary. On the other hand, if Biden didn’t appeal Mizelle’s decision, it would stand as a lasting blow to the great and almighty power of the CDC. On the other other hand, if Biden did appeal Mizelle’s decision, it could land before the Supreme Court, where hatemongering and quite possibly racist right-wing justices could hobble the CDC even further, maybe even deal a blow to the federal government’s broader regulatory authority.
Call it the politician’s dilemma: cheap political advantage versus protecting bureaucrats. Ultimately, Biden decided to punt to the CDC, which was as good as heading to court, since no government department ever willingly gives up its own power. Sure enough, the agency chose to appeal. And cue yelps of fear from left-wing law professors as Justice Neil Gorsuch eyes his jurisprudential Thor hammer.
The funniest part about all this is the stated rationale behind it. “The CDC’s credibility,” Democrats solemnly warn, “is on the line.” But then since when has the CDC had any credibility left to lose? This is the same medical bureaucracy that told Americans for months to socially distance only to suddenly discover an exemption for BLM rioters. It’s the same bureaucracy that recommended cloth masks only to announce back in January that they weren’t very effective. It’s the same bureaucracy that said those who are vaccinated don’t need to wear masks only to discover that they do.
Even CNN’s Brian Stelter has said the agency is “a punchline,” and Brian Stelter travels with his own laugh track. I understand this is a novel coronavirus and experts are still scrambling to figure it out. But two years on, it’s hard to escape the impression that the CDC makes decisions chiefly by dropping watermelons off of a building onto a chalk-drawn target.
Note well what Judge Mizelle said in her ruling. She didn’t strike down mask mandates as unconstitutional. She didn’t gut the CDC. She didn’t find that masks were a violation of the Eighth Amendment’s ban on cruel and unusual punishment (though some of us, the weary and glasses-befogged, wish she had). All she did was to notice that the CDC had claimed enormous emergency powers while failing to go through proper regulatory channels. The agency can now use those channels if it wishes. It can also call upon the powers of an ancient and mist-shrouded branch of government known as “Congress,” which can enact mask mandates on trains, planes, double-masted schooners, whatever it wants.
The problem is that the Biden administration knows even a friendly Congress isn’t going to do that in an election year. And that’s the cream in the coffee: it is the public, not Judge Mizelle, that has kneecapped the CDC. They aren’t listening to the agency and haven’t been for some time. Yet the Democrats also need the CDC right now more than ever, at least as a matter of principle. With Republicans likely to take control of the House and Senate and with GOP-appointed judges dominating the judiciary, the left is increasingly dependent on the unelected bureaucracy to advance its agenda.
Hence why Biden must now fight to preserve the CDC’s absolute supremacy. No word yet on which Federalist paper makes clear that Dr. Rochelle Walensky gets to run everything. But at least now they can see our faces as we glower in disapproval.
