August 12, 2022

Coalition of AGs Files Amicus Brief Against Mask Mandate

Bernard Nash

Cozen O'Connor

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Cozen O'Connor

A group of 23 AGs led by Florida AG Ashley Moody filed an amicus brief in the U.S. Court of Appeals for the Eleventh Circuit arguing that the CDC did not have the statutory authority to impose a nationwide transportation mask mandate in response to the COVID-19 pandemic.
The CDC issued the mask mandate in January 2021. In April of that year, a U.S. District Court declared the mandate unlawful, leading the U.S. Department of Justice to appeal to the 11th Circuit.
Specifically, the amici argue that the CDC bases its authority to issue a mask mandate on its power to require “sanitation” measures pursuant to 42 U.S.S. § 264f(a), which in actuality authorizes the CDC to demand cleaning, whereas a mask does not clean anything and instead traps respiratory droplets in place. The brief also argues that the major-questions doctrine applies, pointing out that if Congress gave the CDC “vast power to impact the economy,” it would not have done so via the “fourth term of a seven-word list buried in the second sentence of a statute.” According to the brief, the mandate is arbitrary and capricious, and violates CDC’s own regulations that only allow the CDC to act if it finds local measures, which it did not study, to be inadequate.

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