Mask On, Mask Off: Which Is It?

“I absolutely hate wearing a mask on long flights. I'm also appalled that masks are no longer required for air travel and on other forms of public transit…

This decision is particularly disastrous for older adults, the ill and the immunocompromised, who still face a much higher chance of being hospitalized or even dying if they contract Covid-19… For most people, going to work or the grocery store is not optional, and many people need to take public transport to get there…

Masking on airplanes and other forms of public transit is a simple intervention that helps to decrease the spread of a variety of airborne illnesses in a context in which dozens, or even hundreds, of people are packed tightly together, sometimes for hours on end.

I get it: I truly despise having to wear a mask all day or night long. The longer the travel, the worse the discomfort. And I genuinely feel for the workers who have to enforce mask mandates and face the ire of unruly and sometimes violent passengers.

But public health measures are always trade-offs… Everyone deserves access to public transportation. And no one should have to risk their lives or their health to take it.”

“Maybe it’s time to end the mask mandate for airplanes, trains and public transport. Maybe it’s prudent to keep it in place. I’m not sure, but I do know this: That decision should be made by federal policymakers — not by a single district court judge who was ideologically predisposed to strike down the mask rule and who then contorted the law to achieve that goal…

“Much like other ‘sanitation’ measures, such as wearing gloves or a gown … wearing a mask is intended to reduce the transmission of viral particles,” the Biden administration argued in the case. As conservative law professor Ilya Somin of George Mason University wrote after the ruling, “It seems to me that mandatory masking to prevent the spread of a respiratory virus at least plausibly fits within the meaning of ‘sanitation.’”

Not to Mizelle. She appeared determined to get rid of the mask mandate, and so she did — by torturing the words of the statute. “Sanitation,” she said, could have two meanings: one active (to take steps to cleanse something) and one passive (“to preserve the cleanliness of something”). Only the first meaning, Mizelle insisted, makes sense in the context of the statute, and ordering passengers to wear a mask fell outside her understanding of “sanitation.”

Seriously? As Somin points out in a rather revolting hypothetical, this would prohibit the CDC from issuing a rule, if such were necessary, against defecating on the floor of a train or airplane. “That would not qualify as ‘sanitation’ under Judge Mizelle’s approach because it does not clean anything, but merely ‘keep[s] something clean’ (in this case, the floor)”...

This is advocacy masquerading as lawgiving. Somin is more sympathetic to Mizelle than I am, but consider his assessment: “At times, Judge Mizelle’s opinion reads as if she is taking a kitchen sink approach to defending her ruling — throwing out every argument she can, good, bad, or indifferent. This strategy makes sense in high school debate, and perhaps for some legal briefs. But it isn’t a good idea for judges ruling on a case, especially an important one.””