https://www.npr.org/sections/health-shots/2022/04/21/1094123780/battle-over-cdcs-powers-goes-far-beyond-travel-mask-mandate
Battle over CDC's powers goes far beyond travel mask mandate
April 21, 20225:42 PM ET
Pien Huang
PIEN HUANG
3-Minute Listen
Download
A discarded mask is seen on the floor inside New York's John F. Kennedy >Airport on Tuesday, a day after a federal judge in Florida struck down
the CDC's mask mandate for public transportation.
Spencer Platt/Getty Images
In a startling rebuke to the Centers for Disease Control and Prevention,
a federal judge in Florida on Monday struck down an agency order that >required people nationwide to wear masks on public transportation to
prevent the spread of COVID-19.
The travel mask mandate had been in place for 14 months, implemented
shortly after President Biden's inauguration, and was a key part of the >country's response to the pandemic. The decision strikes at the heart of
the CDC's mission.
In court documents, the judge described the order as "unlawful" and
claimed "the Mask Mandate exceeds the CDC's statutory authority."
The news of the ruling was celebrated by some – videos of airline
passengers ripping off their masks and rejoicing trended online.
The judge who tossed mask mandate misunderstood public health law, legal >experts say
SHOTS - HEALTH NEWS
The judge who tossed mask mandate misunderstood public health law, legal >experts say
But the decision against the CDC raised concerns in the public health >community. It's the latest in a series of challenges to the agency's >authorities that could hamstring its ability to respond to this pandemic
and public health crises to come.
"It's stunning, the extent to which the courts are reading federal
statutes in the most cramped, narrow way possible to sharply limit the
powers that the federal government can exercise now or in response to
future emergencies," says Lindsay Wiley, a health law professor at
University of California, Los Angeles.
Sponsor Message
The CDC and Justice Department disagree with the mask ruling and are >proceeding with an appeal. In the CDC's assessment, "an order requiring >masking in the indoor transportation corridor remains necessary for the >public health," the agency said in a statement. Further, "CDC believes
this is a lawful order, well within CDC's legal authority to protect
public health."
In the face of an unprecedented pandemic, the public health agency has
flexed its regulatory powers to issue sweeping, legally binding orders
that have affected travel, housing and migration. The agency is now
facing a backlash over some of its actions from courts and Congress.
Limits on public health powers may be gaining popularity now, but health
law experts say the moves are shortsighted; they warn that the
restrictions could undercut the ability of health officials to respond >effectively now and in the future.
Supreme Court slapdown on the eviction ban
If the reasoning behind this week's travel mask mandate ruling was hazy,
the Supreme Court decision last August on the CDC's eviction moratorium
was clear: in a 6-3 decision, the court found that the CDC had "exceeded
its authority" in banning landlords across the country from ousting >delinquent renters.
The rationale for the moratorium was that evictions could contribute to
the spread of COVID-19 by making it harder for people to isolate or >quarantine.
That the CDC put a stay on evictions in the first place was a move that >surprised many, says Wiley. "I think the eviction moratorium really
pushed the limits of what CDC is authorized to do," she says,
"Intuitively, a lot of the general public and a lot of federal judges
felt that this isn't exactly what CDC's role should be – that it should
be left to state and local governments to think about how to handle
evictions during the pandemic."
The Supreme Court's majority opinion hammered home the point: "[T]he
C.D.C. has imposed a nationwide moratorium on evictions in reliance on a >decades-old statute that authorizes it to implement measures like
fumigation and pest extermination," it reads, "It strains credulity to >believe that this statute grants the C.D.C. the sweeping authority that
it asserts."
The CDC's regulatory powers stem from the Public Health Services Act of
1944 – "a very old statute that hasn't been updated since," says Larry >Gostin, director of the O'Neill Institute for National and Global Health
Law at Georgetown University. The law, signed by President Franklin D. >Roosevelt, predated the founding of the CDC by two years. It gave the
public health branch of the federal government powers to, for instance, >enforce quarantine laws.
Decades later, those legal powers are in need of an update: "There's so
much that has changed, but CDC's powers haven't," Gostin says, citing
world travel, mass migration and other factors that contribute to global >disease spread.
The increasing conservatism of the courts also factored into the Supreme >Court rebuke over the eviction moratorium, UCLA's Wiley says. The stay
on evictions, which was first issued in September 2020, "was upheld by >federal courts when it was being defended by the Trump administration,"
Wiley notes. It was only "when it was being defended by the Biden >administration before a changing judiciary," that court challenges
started skewing against the government, and the Supreme Court struck it
down, she says.
The Supreme Court decision set a precedent that may empower lower courts
to further limit public health powers, says James Hodge, a health law >professor at Arizona State University. It puts the CDC's powers under a >microscope, and opens it up to other challenges. "I think courts will
take the [Supreme Court] decision and say things like, 'It's clear the >Supreme Court does not envision [the CDC] having the direct federal
authority to do what states should be doing," he says. The decision was
cited in the district court ruling this week that struck down the
federal mask mandate.
It also forces the CDC to rethink its strategies as it faces other court >challenges. "You get cold feet when you see what can happen to your
scope and authority, when an entity like the Supreme Court gets hold of
it," Hodge says, "Especially in a more conservative court that ... is
issuing opinions that are about less about what's in the public health >interest, and more about agency authority."
Other public health orders challenged
The CDC has issued some broad and far-reaching nationwide orders during
the pandemic. Beyond issuing travel requirements and banning evictions,
it has banned migrants at the borders and grounded the cruise industry
for periods during the pandemic. These orders were punishable by fines
and criminal penalties.
"This has been the largest and most expansive use of regulatory
authority [by CDC], given the unprecedented nature of this pandemic
threat," Dr. Martin Cetron, director of the CDC's division of global >migration and quarantine, told NPR in March 2021, "While we've been
reshaping and modernizing our public health authorities for decades –
and we've used them in smaller ways, on an individual basis, in the past
– this pandemic has called for the more broad, population-based use of
public health authorities."
The CDC did not make anyone available for comment for this story despite >multiple requests.
While the CDC's authorities from Congress haven't changed in decades,
there have been efforts by the CDC to more clearly define them, most
recently with a set of rules, created at the tail end of the Obama >administration that spelled out the CDC's authority to detain and
quarantine individuals that might be harboring dangerous infectious
diseases.
"Those regulations were firmly entrenched pre-COVID," says Arizona
State's Hodge, who serves as a regional director for the Network for
Public Health Law. "Those rules are what CDC attempted to follow. But
they got tripped up on political hurdles, and got into some hot water
related to their breadth and scope."
The cruise industry pushed back against a months-long "no-sail" order
and the CDC's long list of requirements for restarting, alleging unfair >treatment from the agency. Immigration advocates railed against a CDC
order under Title 42 that turned migrants away at U.S. land borders for
the stated purpose of limiting the spread of COVID-19.
Centers for Disease Control and Prevention Director Rochelle Walensky
made the decision on April 1 to rescind immigration restrictions related
to COVID-19 that were first implemented during the Trump administration.
Greg Nash/AFP via Getty Images
The CDC announced earlier this month that it's winding down its Title 42 >order – now set to expire May 23. The introduction of COVID-19 from
migrants at the U.S.-Mexico border has "ceased to be a serious danger to
the public health," CDC Director Rochelle Walensky wrote in the decision.
Health law experts say the public health rationale for establishing it
in the first place was shaky, and made the agency appear politicized. >"Recently, a judge said, I think quite rightly, 'This has nothing to do
with public health. This is just to do with politics and border policy,'
" Georgetown's Gostin says. While a ban on migrants may serve a
president's immigration policy goals, using public health rationale as >political cover can weaken the agency, he says. "CDC must always act
with evidence, and they must always show a scientific rationale for what
they do – never a political one and never stretch beyond what CDC was >designed to do, which is to protect the American public in ways that >individual states can't."
Losing the bully pulpit
When the CDC's travel masking order was invalidated by the federal
judges in Florida, the agency was only able to recommend that travelers >continue wearing masks.
When the agency issues advice – on masks, on testing, on quarantining
and isolation – its guidance is routinely questioned and many states go
on to craft their own policies.
As the CDC's hard powers get challenged in court, the CDC's soft powers
– its ability to persuade through reputation and reason – have also
taken a hit.
In the past, "CDC has never had national authority over what states do
in public health, and yet we haven't had the problems we're having now,"
Dr. William Foege, a former CDC director, said during a panel discussion
this month. "If there was even an outbreak investigation, CDC had to be
asked by the state or a county or a city or a tribe to do that
investigation ... and yet the system worked so well that it was never a >problem. We didn't need more authority."
Previously, states took CDC guidance as a basis to regulate. "Even
though CDC wasn't passing the laws, the fact that the CDC said, 'this is
what we think people should do' carried a lot of weight," says Liza >Vertinsky, a health law professor at Emory University.
But the agency's reputation has been tarnished by perceptions of >politicization during the pandemic. The CDC has lost public confidence
and trust, and its guidance is now frequently treated as a suggestion by
some states and as a trigger for active opposition by others. "I think
they can do less than they should be able to do," Vertinsky says of the
CDC, "because when they issue the guidance, it no longer carries the
weight."
Limits on public health powers have risks
The conundrum for public health officials, tasked with navigating a
pandemic while their powers and popularity wane, extends to state and
local authorities. Some legislatures are limiting the scope and duration
of public health orders on masking, vaccinations and gatherings, and >requiring more public and political input for disease mitigation measures.
"There's no question that the nation's public health authorities are
being challenged at all levels," says Dr. Georges Benjamin, head of the >American Public Health Association. "We are tying the hands of our
nation's public health officials, and we need to stop and think about
that because you cannot manage an emergency by committee."
The move to curb so many public health powers strikes some as myopic.
"People on all parts of the political spectrum need to understand that
the next pandemic might look very different," says Wendy Parmet, health
law professor at Northeastern University, "What if the next disease
kills kids, not adults? Are we going to force kids to go to school in >person?"
In the next pandemic, the political dynamics could be flipped.
Republicans might prefer to be more aggressive at disease control than >Democrats, as happened with the Ebola outbreak in 2014, when
"Republicans [wanted] more quarantines, and Democrats were arguing for a
much more lenient approach," Parmet says. "We need to prepare for the >unknown. We need to have the imagination to understand that what comes
next might not look either epidemiologically or politically like what
we've seen."
The CDC must "tread carefully" as it determines how to respond to court >challenges to its powers, Arizona State's Hodge says. The agency has
asked the Justice Department to appeal this week's travel mask mandate >ruling, to help preserve the agency's public health authorities.
There are big benefits to winning an appeal – and clear risks to losing. >Currently, the district court ruling is a limited decision with "very
little precedential value," Hodge says. A failed appeal in a higher
court could put permanent limits on the CDC's regulatory powers.
For the future, the CDC's authorities should be clearly defined,
Georgetown's Gostin says. "The CDC needs to have power, so it doesn't
always have to look behind its shoulder at what some governor, some >congressperson, or some judge is saying. They need to act decisively and >flexibly," he says. "But they also need to respect individual liberty
and act with evidence and always act using the least restrictive >alternative."
He says these principles, stretched and magnified by COVID-19, should be >assigned to the agency as part of a modernization act from Congress,
which hasn't significantly updated the CDC's powers since 1944. "We need
to make sure that they have the kind of modern legal tools that any
public health agency needs to do a good job."
But in the current political climate, when public health mandates are >unpopular and public health workers are facing attacks, "it's just as
likely CDC would be curtailed as expanded" as part of a congressional >reexamination of its powers, Gostin says.
By all accounts, including its own, the CDC has acted imperfectly in its >response to this pandemic. The agency has much work ahead in evaluating
how it could do better and how to regain public trust.
Even so, the push to restrain the CDC's regulatory powers is misguided,
and could lead to dangerous repercussions, Hodge warns. "When the next
threat hits us, everybody is going to turn right back to CDC and say,
'What are you doing about this? How are you responding?' "
Having less authority to issue orders to contain health threats could >backfire on the nation.
Michael Ejercito wrote:
https://www.npr.org/sections/health-shots/2022/04/21/1094123780/battle-over-cdcs-powers-goes-far-beyond-travel-mask-mandate
Battle over CDC's powers goes far beyond travel mask mandate
April 21, 20225:42 PM ET
Pien Huang
PIEN HUANG
3-Minute Listen
Download
A discarded mask is seen on the floor inside New York's John F. Kennedy
Airport on Tuesday, a day after a federal judge in Florida struck down
the CDC's mask mandate for public transportation.
Spencer Platt/Getty Images
In a startling rebuke to the Centers for Disease Control and Prevention,
a federal judge in Florida on Monday struck down an agency order that
required people nationwide to wear masks on public transportation to
prevent the spread of COVID-19.
The travel mask mandate had been in place for 14 months, implemented
shortly after President Biden's inauguration, and was a key part of the
country's response to the pandemic. The decision strikes at the heart of
the CDC's mission.
In court documents, the judge described the order as "unlawful" and
claimed "the Mask Mandate exceeds the CDC's statutory authority."
The news of the ruling was celebrated by some – videos of airline
passengers ripping off their masks and rejoicing trended online.
The judge who tossed mask mandate misunderstood public health law, legal
experts say
SHOTS - HEALTH NEWS
The judge who tossed mask mandate misunderstood public health law, legal
experts say
But the decision against the CDC raised concerns in the public health
community. It's the latest in a series of challenges to the agency's
authorities that could hamstring its ability to respond to this pandemic
and public health crises to come.
"It's stunning, the extent to which the courts are reading federal
statutes in the most cramped, narrow way possible to sharply limit the
powers that the federal government can exercise now or in response to
future emergencies," says Lindsay Wiley, a health law professor at
University of California, Los Angeles.
Sponsor Message
The CDC and Justice Department disagree with the mask ruling and are
proceeding with an appeal. In the CDC's assessment, "an order requiring
masking in the indoor transportation corridor remains necessary for the
public health," the agency said in a statement. Further, "CDC believes
this is a lawful order, well within CDC's legal authority to protect
public health."
In the face of an unprecedented pandemic, the public health agency has
flexed its regulatory powers to issue sweeping, legally binding orders
that have affected travel, housing and migration. The agency is now
facing a backlash over some of its actions from courts and Congress.
Limits on public health powers may be gaining popularity now, but health
law experts say the moves are shortsighted; they warn that the
restrictions could undercut the ability of health officials to respond
effectively now and in the future.
Supreme Court slapdown on the eviction ban
If the reasoning behind this week's travel mask mandate ruling was hazy,
the Supreme Court decision last August on the CDC's eviction moratorium
was clear: in a 6-3 decision, the court found that the CDC had "exceeded
its authority" in banning landlords across the country from ousting
delinquent renters.
The rationale for the moratorium was that evictions could contribute to
the spread of COVID-19 by making it harder for people to isolate or
quarantine.
That the CDC put a stay on evictions in the first place was a move that
surprised many, says Wiley. "I think the eviction moratorium really
pushed the limits of what CDC is authorized to do," she says,
"Intuitively, a lot of the general public and a lot of federal judges
felt that this isn't exactly what CDC's role should be – that it should
be left to state and local governments to think about how to handle
evictions during the pandemic."
The Supreme Court's majority opinion hammered home the point: "[T]he
C.D.C. has imposed a nationwide moratorium on evictions in reliance on a
decades-old statute that authorizes it to implement measures like
fumigation and pest extermination," it reads, "It strains credulity to
believe that this statute grants the C.D.C. the sweeping authority that
it asserts."
The CDC's regulatory powers stem from the Public Health Services Act of
1944 – "a very old statute that hasn't been updated since," says Larry
Gostin, director of the O'Neill Institute for National and Global Health
Law at Georgetown University. The law, signed by President Franklin D.
Roosevelt, predated the founding of the CDC by two years. It gave the
public health branch of the federal government powers to, for instance,
enforce quarantine laws.
Decades later, those legal powers are in need of an update: "There's so
much that has changed, but CDC's powers haven't," Gostin says, citing
world travel, mass migration and other factors that contribute to global
disease spread.
The increasing conservatism of the courts also factored into the Supreme
Court rebuke over the eviction moratorium, UCLA's Wiley says. The stay
on evictions, which was first issued in September 2020, "was upheld by
federal courts when it was being defended by the Trump administration,"
Wiley notes. It was only "when it was being defended by the Biden
administration before a changing judiciary," that court challenges
started skewing against the government, and the Supreme Court struck it
down, she says.
The Supreme Court decision set a precedent that may empower lower courts
to further limit public health powers, says James Hodge, a health law
professor at Arizona State University. It puts the CDC's powers under a
microscope, and opens it up to other challenges. "I think courts will
take the [Supreme Court] decision and say things like, 'It's clear the
Supreme Court does not envision [the CDC] having the direct federal
authority to do what states should be doing," he says. The decision was
cited in the district court ruling this week that struck down the
federal mask mandate.
It also forces the CDC to rethink its strategies as it faces other court
challenges. "You get cold feet when you see what can happen to your
scope and authority, when an entity like the Supreme Court gets hold of
it," Hodge says, "Especially in a more conservative court that ... is
issuing opinions that are about less about what's in the public health
interest, and more about agency authority."
Other public health orders challenged
The CDC has issued some broad and far-reaching nationwide orders during
the pandemic. Beyond issuing travel requirements and banning evictions,
it has banned migrants at the borders and grounded the cruise industry
for periods during the pandemic. These orders were punishable by fines
and criminal penalties.
"This has been the largest and most expansive use of regulatory
authority [by CDC], given the unprecedented nature of this pandemic
threat," Dr. Martin Cetron, director of the CDC's division of global
migration and quarantine, told NPR in March 2021, "While we've been
reshaping and modernizing our public health authorities for decades –
and we've used them in smaller ways, on an individual basis, in the past
– this pandemic has called for the more broad, population-based use of
public health authorities."
The CDC did not make anyone available for comment for this story despite
multiple requests.
While the CDC's authorities from Congress haven't changed in decades,
there have been efforts by the CDC to more clearly define them, most
recently with a set of rules, created at the tail end of the Obama
administration that spelled out the CDC's authority to detain and
quarantine individuals that might be harboring dangerous infectious
diseases.
"Those regulations were firmly entrenched pre-COVID," says Arizona
State's Hodge, who serves as a regional director for the Network for
Public Health Law. "Those rules are what CDC attempted to follow. But
they got tripped up on political hurdles, and got into some hot water
related to their breadth and scope."
The cruise industry pushed back against a months-long "no-sail" order
and the CDC's long list of requirements for restarting, alleging unfair
treatment from the agency. Immigration advocates railed against a CDC
order under Title 42 that turned migrants away at U.S. land borders for
the stated purpose of limiting the spread of COVID-19.
Centers for Disease Control and Prevention Director Rochelle Walensky
made the decision on April 1 to rescind immigration restrictions related
to COVID-19 that were first implemented during the Trump administration.
Greg Nash/AFP via Getty Images
The CDC announced earlier this month that it's winding down its Title 42
order – now set to expire May 23. The introduction of COVID-19 from
migrants at the U.S.-Mexico border has "ceased to be a serious danger to
the public health," CDC Director Rochelle Walensky wrote in the decision.
Health law experts say the public health rationale for establishing it
in the first place was shaky, and made the agency appear politicized.
"Recently, a judge said, I think quite rightly, 'This has nothing to do
with public health. This is just to do with politics and border policy,'
" Georgetown's Gostin says. While a ban on migrants may serve a
president's immigration policy goals, using public health rationale as
political cover can weaken the agency, he says. "CDC must always act
with evidence, and they must always show a scientific rationale for what
they do – never a political one and never stretch beyond what CDC was
designed to do, which is to protect the American public in ways that
individual states can't."
Losing the bully pulpit
When the CDC's travel masking order was invalidated by the federal
judges in Florida, the agency was only able to recommend that travelers
continue wearing masks.
When the agency issues advice – on masks, on testing, on quarantining
and isolation – its guidance is routinely questioned and many states go
on to craft their own policies.
As the CDC's hard powers get challenged in court, the CDC's soft powers
– its ability to persuade through reputation and reason – have also
taken a hit.
In the past, "CDC has never had national authority over what states do
in public health, and yet we haven't had the problems we're having now,"
Dr. William Foege, a former CDC director, said during a panel discussion
this month. "If there was even an outbreak investigation, CDC had to be
asked by the state or a county or a city or a tribe to do that
investigation ... and yet the system worked so well that it was never a
problem. We didn't need more authority."
Previously, states took CDC guidance as a basis to regulate. "Even
though CDC wasn't passing the laws, the fact that the CDC said, 'this is
what we think people should do' carried a lot of weight," says Liza
Vertinsky, a health law professor at Emory University.
But the agency's reputation has been tarnished by perceptions of
politicization during the pandemic. The CDC has lost public confidence
and trust, and its guidance is now frequently treated as a suggestion by
some states and as a trigger for active opposition by others. "I think
they can do less than they should be able to do," Vertinsky says of the
CDC, "because when they issue the guidance, it no longer carries the
weight."
Limits on public health powers have risks
The conundrum for public health officials, tasked with navigating a
pandemic while their powers and popularity wane, extends to state and
local authorities. Some legislatures are limiting the scope and duration
of public health orders on masking, vaccinations and gatherings, and
requiring more public and political input for disease mitigation measures. >>
"There's no question that the nation's public health authorities are
being challenged at all levels," says Dr. Georges Benjamin, head of the
American Public Health Association. "We are tying the hands of our
nation's public health officials, and we need to stop and think about
that because you cannot manage an emergency by committee."
The move to curb so many public health powers strikes some as myopic.
"People on all parts of the political spectrum need to understand that
the next pandemic might look very different," says Wendy Parmet, health
law professor at Northeastern University, "What if the next disease
kills kids, not adults? Are we going to force kids to go to school in
person?"
In the next pandemic, the political dynamics could be flipped.
Republicans might prefer to be more aggressive at disease control than
Democrats, as happened with the Ebola outbreak in 2014, when
"Republicans [wanted] more quarantines, and Democrats were arguing for a
much more lenient approach," Parmet says. "We need to prepare for the
unknown. We need to have the imagination to understand that what comes
next might not look either epidemiologically or politically like what
we've seen."
The CDC must "tread carefully" as it determines how to respond to court
challenges to its powers, Arizona State's Hodge says. The agency has
asked the Justice Department to appeal this week's travel mask mandate
ruling, to help preserve the agency's public health authorities.
There are big benefits to winning an appeal – and clear risks to losing. >> Currently, the district court ruling is a limited decision with "very
little precedential value," Hodge says. A failed appeal in a higher
court could put permanent limits on the CDC's regulatory powers.
For the future, the CDC's authorities should be clearly defined,
Georgetown's Gostin says. "The CDC needs to have power, so it doesn't
always have to look behind its shoulder at what some governor, some
congressperson, or some judge is saying. They need to act decisively and
flexibly," he says. "But they also need to respect individual liberty
and act with evidence and always act using the least restrictive
alternative."
He says these principles, stretched and magnified by COVID-19, should be
assigned to the agency as part of a modernization act from Congress,
which hasn't significantly updated the CDC's powers since 1944. "We need
to make sure that they have the kind of modern legal tools that any
public health agency needs to do a good job."
But in the current political climate, when public health mandates are
unpopular and public health workers are facing attacks, "it's just as
likely CDC would be curtailed as expanded" as part of a congressional
reexamination of its powers, Gostin says.
By all accounts, including its own, the CDC has acted imperfectly in its
response to this pandemic. The agency has much work ahead in evaluating
how it could do better and how to regain public trust.
Even so, the push to restrain the CDC's regulatory powers is misguided,
and could lead to dangerous repercussions, Hodge warns. "When the next
threat hits us, everybody is going to turn right back to CDC and say,
'What are you doing about this? How are you responding?' "
Having less authority to issue orders to contain health threats could
backfire on the nation.
The only *healthy* way to stop the pandemic, thereby saving lives, in
the U.S. & elsewhere is by rapidly ( http://bit.ly/RapidTestCOVID-19 ) finding out at any given moment, including even while on-line, who
among us are unwittingly contagious (i.e pre-symptomatic or
asymptomatic) in order to http://tinyurl.com/ConvinceItForward (John
15:12) for them to call their doctor and self-quarantine per their
doctor in hopes of stopping this pandemic. Thus, we're hoping for the
best while preparing for the worse-case scenario of the Alpha lineage mutations and others like the Omicron, Gamma, Beta, Epsilon, Iota,
Lambda, Mu & Delta lineage mutations combining via
slip-RNA-replication to form hybrids like
http://tinyurl.com/Deltamicron that may render current COVID vaccines/monoclonals/medicines/pills no longer effective.
Indeed, I am wonderfully hungry ( http://tinyurl.com/RapidOmicronTest
) and hope you, Michael, also have a healthy appetite too.
So how are you ?
HeartDoc Andrew, in the Holy Spirit, boldly wrote:
Michael Ejercito wrote:
https://www.npr.org/sections/health-shots/2022/04/21/1094123780/battle-over-cdcs-powers-goes-far-beyond-travel-mask-mandate
Battle over CDC's powers goes far beyond travel mask mandate
April 21, 20225:42 PM ET
Pien Huang
PIEN HUANG
3-Minute Listen
Download
A discarded mask is seen on the floor inside New York's John F. Kennedy
Airport on Tuesday, a day after a federal judge in Florida struck down
the CDC's mask mandate for public transportation.
Spencer Platt/Getty Images
In a startling rebuke to the Centers for Disease Control and Prevention, >>> a federal judge in Florida on Monday struck down an agency order that
required people nationwide to wear masks on public transportation to
prevent the spread of COVID-19.
The travel mask mandate had been in place for 14 months, implemented
shortly after President Biden's inauguration, and was a key part of the
country's response to the pandemic. The decision strikes at the heart of >>> the CDC's mission.
In court documents, the judge described the order as "unlawful" and
claimed "the Mask Mandate exceeds the CDC's statutory authority."
The news of the ruling was celebrated by some – videos of airline
passengers ripping off their masks and rejoicing trended online.
The judge who tossed mask mandate misunderstood public health law, legal >>> experts say
SHOTS - HEALTH NEWS
The judge who tossed mask mandate misunderstood public health law, legal >>> experts say
But the decision against the CDC raised concerns in the public health
community. It's the latest in a series of challenges to the agency's
authorities that could hamstring its ability to respond to this pandemic >>> and public health crises to come.
"It's stunning, the extent to which the courts are reading federal
statutes in the most cramped, narrow way possible to sharply limit the
powers that the federal government can exercise now or in response to
future emergencies," says Lindsay Wiley, a health law professor at
University of California, Los Angeles.
Sponsor Message
The CDC and Justice Department disagree with the mask ruling and are
proceeding with an appeal. In the CDC's assessment, "an order requiring
masking in the indoor transportation corridor remains necessary for the
public health," the agency said in a statement. Further, "CDC believes
this is a lawful order, well within CDC's legal authority to protect
public health."
In the face of an unprecedented pandemic, the public health agency has
flexed its regulatory powers to issue sweeping, legally binding orders
that have affected travel, housing and migration. The agency is now
facing a backlash over some of its actions from courts and Congress.
Limits on public health powers may be gaining popularity now, but health >>> law experts say the moves are shortsighted; they warn that the
restrictions could undercut the ability of health officials to respond
effectively now and in the future.
Supreme Court slapdown on the eviction ban
If the reasoning behind this week's travel mask mandate ruling was hazy, >>> the Supreme Court decision last August on the CDC's eviction moratorium
was clear: in a 6-3 decision, the court found that the CDC had "exceeded >>> its authority" in banning landlords across the country from ousting
delinquent renters.
The rationale for the moratorium was that evictions could contribute to
the spread of COVID-19 by making it harder for people to isolate or
quarantine.
That the CDC put a stay on evictions in the first place was a move that
surprised many, says Wiley. "I think the eviction moratorium really
pushed the limits of what CDC is authorized to do," she says,
"Intuitively, a lot of the general public and a lot of federal judges
felt that this isn't exactly what CDC's role should be – that it should
be left to state and local governments to think about how to handle
evictions during the pandemic."
The Supreme Court's majority opinion hammered home the point: "[T]he
C.D.C. has imposed a nationwide moratorium on evictions in reliance on a >>> decades-old statute that authorizes it to implement measures like
fumigation and pest extermination," it reads, "It strains credulity to
believe that this statute grants the C.D.C. the sweeping authority that
it asserts."
The CDC's regulatory powers stem from the Public Health Services Act of
1944 – "a very old statute that hasn't been updated since," says Larry
Gostin, director of the O'Neill Institute for National and Global Health >>> Law at Georgetown University. The law, signed by President Franklin D.
Roosevelt, predated the founding of the CDC by two years. It gave the
public health branch of the federal government powers to, for instance,
enforce quarantine laws.
Decades later, those legal powers are in need of an update: "There's so
much that has changed, but CDC's powers haven't," Gostin says, citing
world travel, mass migration and other factors that contribute to global >>> disease spread.
The increasing conservatism of the courts also factored into the Supreme >>> Court rebuke over the eviction moratorium, UCLA's Wiley says. The stay
on evictions, which was first issued in September 2020, "was upheld by
federal courts when it was being defended by the Trump administration,"
Wiley notes. It was only "when it was being defended by the Biden
administration before a changing judiciary," that court challenges
started skewing against the government, and the Supreme Court struck it
down, she says.
The Supreme Court decision set a precedent that may empower lower courts >>> to further limit public health powers, says James Hodge, a health law
professor at Arizona State University. It puts the CDC's powers under a
microscope, and opens it up to other challenges. "I think courts will
take the [Supreme Court] decision and say things like, 'It's clear the
Supreme Court does not envision [the CDC] having the direct federal
authority to do what states should be doing," he says. The decision was
cited in the district court ruling this week that struck down the
federal mask mandate.
It also forces the CDC to rethink its strategies as it faces other court >>> challenges. "You get cold feet when you see what can happen to your
scope and authority, when an entity like the Supreme Court gets hold of
it," Hodge says, "Especially in a more conservative court that ... is
issuing opinions that are about less about what's in the public health
interest, and more about agency authority."
Other public health orders challenged
The CDC has issued some broad and far-reaching nationwide orders during
the pandemic. Beyond issuing travel requirements and banning evictions,
it has banned migrants at the borders and grounded the cruise industry
for periods during the pandemic. These orders were punishable by fines
and criminal penalties.
"This has been the largest and most expansive use of regulatory
authority [by CDC], given the unprecedented nature of this pandemic
threat," Dr. Martin Cetron, director of the CDC's division of global
migration and quarantine, told NPR in March 2021, "While we've been
reshaping and modernizing our public health authorities for decades –
and we've used them in smaller ways, on an individual basis, in the past >>> – this pandemic has called for the more broad, population-based use of
public health authorities."
The CDC did not make anyone available for comment for this story despite >>> multiple requests.
While the CDC's authorities from Congress haven't changed in decades,
there have been efforts by the CDC to more clearly define them, most
recently with a set of rules, created at the tail end of the Obama
administration that spelled out the CDC's authority to detain and
quarantine individuals that might be harboring dangerous infectious
diseases.
"Those regulations were firmly entrenched pre-COVID," says Arizona
State's Hodge, who serves as a regional director for the Network for
Public Health Law. "Those rules are what CDC attempted to follow. But
they got tripped up on political hurdles, and got into some hot water
related to their breadth and scope."
The cruise industry pushed back against a months-long "no-sail" order
and the CDC's long list of requirements for restarting, alleging unfair
treatment from the agency. Immigration advocates railed against a CDC
order under Title 42 that turned migrants away at U.S. land borders for
the stated purpose of limiting the spread of COVID-19.
Centers for Disease Control and Prevention Director Rochelle Walensky
made the decision on April 1 to rescind immigration restrictions related >>> to COVID-19 that were first implemented during the Trump administration. >>> Greg Nash/AFP via Getty Images
The CDC announced earlier this month that it's winding down its Title 42 >>> order – now set to expire May 23. The introduction of COVID-19 from
migrants at the U.S.-Mexico border has "ceased to be a serious danger to >>> the public health," CDC Director Rochelle Walensky wrote in the decision. >>>
Health law experts say the public health rationale for establishing it
in the first place was shaky, and made the agency appear politicized.
"Recently, a judge said, I think quite rightly, 'This has nothing to do
with public health. This is just to do with politics and border policy,' >>> " Georgetown's Gostin says. While a ban on migrants may serve a
president's immigration policy goals, using public health rationale as
political cover can weaken the agency, he says. "CDC must always act
with evidence, and they must always show a scientific rationale for what >>> they do – never a political one and never stretch beyond what CDC was
designed to do, which is to protect the American public in ways that
individual states can't."
Losing the bully pulpit
When the CDC's travel masking order was invalidated by the federal
judges in Florida, the agency was only able to recommend that travelers
continue wearing masks.
When the agency issues advice – on masks, on testing, on quarantining
and isolation – its guidance is routinely questioned and many states go
on to craft their own policies.
As the CDC's hard powers get challenged in court, the CDC's soft powers
– its ability to persuade through reputation and reason – have also
taken a hit.
In the past, "CDC has never had national authority over what states do
in public health, and yet we haven't had the problems we're having now," >>> Dr. William Foege, a former CDC director, said during a panel discussion >>> this month. "If there was even an outbreak investigation, CDC had to be
asked by the state or a county or a city or a tribe to do that
investigation ... and yet the system worked so well that it was never a
problem. We didn't need more authority."
Previously, states took CDC guidance as a basis to regulate. "Even
though CDC wasn't passing the laws, the fact that the CDC said, 'this is >>> what we think people should do' carried a lot of weight," says Liza
Vertinsky, a health law professor at Emory University.
But the agency's reputation has been tarnished by perceptions of
politicization during the pandemic. The CDC has lost public confidence
and trust, and its guidance is now frequently treated as a suggestion by >>> some states and as a trigger for active opposition by others. "I think
they can do less than they should be able to do," Vertinsky says of the
CDC, "because when they issue the guidance, it no longer carries the
weight."
Limits on public health powers have risks
The conundrum for public health officials, tasked with navigating a
pandemic while their powers and popularity wane, extends to state and
local authorities. Some legislatures are limiting the scope and duration >>> of public health orders on masking, vaccinations and gatherings, and
requiring more public and political input for disease mitigation measures. >>>
"There's no question that the nation's public health authorities are
being challenged at all levels," says Dr. Georges Benjamin, head of the
American Public Health Association. "We are tying the hands of our
nation's public health officials, and we need to stop and think about
that because you cannot manage an emergency by committee."
The move to curb so many public health powers strikes some as myopic.
"People on all parts of the political spectrum need to understand that
the next pandemic might look very different," says Wendy Parmet, health
law professor at Northeastern University, "What if the next disease
kills kids, not adults? Are we going to force kids to go to school in
person?"
In the next pandemic, the political dynamics could be flipped.
Republicans might prefer to be more aggressive at disease control than
Democrats, as happened with the Ebola outbreak in 2014, when
"Republicans [wanted] more quarantines, and Democrats were arguing for a >>> much more lenient approach," Parmet says. "We need to prepare for the
unknown. We need to have the imagination to understand that what comes
next might not look either epidemiologically or politically like what
we've seen."
The CDC must "tread carefully" as it determines how to respond to court
challenges to its powers, Arizona State's Hodge says. The agency has
asked the Justice Department to appeal this week's travel mask mandate
ruling, to help preserve the agency's public health authorities.
There are big benefits to winning an appeal – and clear risks to losing. >>> Currently, the district court ruling is a limited decision with "very
little precedential value," Hodge says. A failed appeal in a higher
court could put permanent limits on the CDC's regulatory powers.
For the future, the CDC's authorities should be clearly defined,
Georgetown's Gostin says. "The CDC needs to have power, so it doesn't
always have to look behind its shoulder at what some governor, some
congressperson, or some judge is saying. They need to act decisively and >>> flexibly," he says. "But they also need to respect individual liberty
and act with evidence and always act using the least restrictive
alternative."
He says these principles, stretched and magnified by COVID-19, should be >>> assigned to the agency as part of a modernization act from Congress,
which hasn't significantly updated the CDC's powers since 1944. "We need >>> to make sure that they have the kind of modern legal tools that any
public health agency needs to do a good job."
But in the current political climate, when public health mandates are
unpopular and public health workers are facing attacks, "it's just as
likely CDC would be curtailed as expanded" as part of a congressional
reexamination of its powers, Gostin says.
By all accounts, including its own, the CDC has acted imperfectly in its >>> response to this pandemic. The agency has much work ahead in evaluating
how it could do better and how to regain public trust.
Even so, the push to restrain the CDC's regulatory powers is misguided,
and could lead to dangerous repercussions, Hodge warns. "When the next
threat hits us, everybody is going to turn right back to CDC and say,
'What are you doing about this? How are you responding?' "
Having less authority to issue orders to contain health threats could
backfire on the nation.
The only *healthy* way to stop the pandemic, thereby saving lives, in
the U.S. & elsewhere is by rapidly ( http://bit.ly/RapidTestCOVID-19 )
finding out at any given moment, including even while on-line, who
among us are unwittingly contagious (i.e pre-symptomatic or
asymptomatic) in order to http://tinyurl.com/ConvinceItForward (John
15:12) for them to call their doctor and self-quarantine per their
doctor in hopes of stopping this pandemic. Thus, we're hoping for the
best while preparing for the worse-case scenario of the Alpha lineage
mutations and others like the Omicron, Gamma, Beta, Epsilon, Iota,
Lambda, Mu & Delta lineage mutations combining via
slip-RNA-replication to form hybrids like
http://tinyurl.com/Deltamicron that may render current COVID
vaccines/monoclonals/medicines/pills no longer effective.
Indeed, I am wonderfully hungry ( http://tinyurl.com/RapidOmicronTest
) and hope you, Michael, also have a healthy appetite too.
So how are you ?
I am wonderfully hungry!
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