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Biden admin reaches for ‘breathtaking power’ in fight for mask mandate

'A limitless authority to regulate any matter that arguably relates to public health'

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Yudi Sherman

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January 19, 2023

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05:47 AM

Biden admin reaches for ‘breathtaking power’ in fight for mask mandate

The Biden administration is making a grab for “breathtaking power” in its push to restore the travel mask mandate, which was struck down in April 2022 by a federal district court in Florida. 

Following the ruling, the Justice Department appealed to have the mandate reinstated despite Joe Biden announcing in September that “the pandemic is over.” 

"If you notice, no one's wearing a mask, everybody seems to be in pretty good shape," Biden added then. 

The 11th Circuit Court of Appeals heard first arguments Tuesday, which mostly centered on whether the CDC has the authority to impose a mask mandate. 

According to the Justice Department, the mask mandate order “falls easily within the CDC’s statutory authority” because, as per the Public Health Service Act, the Health and Human Services (HHS) Department secretary has broad authority to enforce regulations and health measures concerning diseases, such as “sanitation” and “other measures”. 

But the Health Freedom Defense Fund (HFDF), which filed the original complaint against the Biden administration, warned the court that the federal government is lunging for unprecedented power with its broad interpretation of the law, seizing on the authority to enforce “sanitation”. The CDC’s interpretation of the word "would bestow the agency with a breathtaking power, one that could be used to justify a limitless authority to regulate any matter that arguably relates to public health.” 

The CDC could, for example, use the law to require businesses to install filtration systems, mandate physical distancing, coughing into elbows, and daily multivitamins. It could mandate the use of condoms or outlaw intimate contact altogether to stave off monkeypox. 

More than that, the CDC violated procedure by decreeing a mask mandate without first notifying the public and allowing for public comment, which is required by the Administrative Procedure Act (APA).

The CDC tried to argue that COVID-19 was an “emergency” and notice-and-comment would have delayed the mandate while people died — except the CDC had already waiting an entire year to impose the mandate.

“Judge Brasher used the words ‘slam dunk’ to describe our argument that CDC violated the Administrative Procedure Act (APA) in promulgating the federal travel mask requirement absent public notice or comment. This sentiment supports our contention that CDC violated the law in issuing the mask mandate,” HFDF Founder and President Leslie Manookian told Frontline News.

The judges also noted that the APA requires the CDC to show “good cause” besides for just claiming “emergency”.  The agency failed to do this.

And if it was such an emergency, argued HFDF attorney Brant Hadaway, why did the government wait several days before appealing?

Scientific evidence was notably missing from the CDC's argument for a mask mandate.

“CDC failed to cite a single controlled trial demonstrating that mask mandates have had any impact in a community setting. The studies on which it did rely were of low quality,” argued the HFDF. 

Indeed, the only two controlled studies on masks do not support mask mandates. One from Bangladesh shows that masks provide an 11% infection decrease for older people and no impact on younger people, and one from Denmark shows that masks have no effect on infections at all. 

“CDC never had any evidence that requiring tens of millions of laymen to don a medical device, without doing anything to actually identify sick individuals, was ever going to prevent the interstate spread of COVID-19.” 

The CDC, with no scientific basis, mandated masks for small children. Even the World Health Organization (WHO) recommends that children under age five do not need to wear masks and “[f]or children between six and 11 years of age, a risk-based approach should be applied to the decision to use a mask[.]” 

“It leaves one to wonder whether anyone at CDC has ever cared for a 2-year-old,” the HFDF remarked. 

Even in its own argument for a mask mandate, the Justice Department’s scientific grounds consisted of an article featuring Yale doctors who recommended masks and a CNN article on the 1918 flu pandemic. 

The HFDF noted that even the New York Times, an ardent fangirl of all things mandated, admitted mask mandates don’t work. 

But while the Biden administration struggled to find evidence to support mask wearing, human rights group America’s Frontline Doctors (AFLDS) filed an amicus brief citing over 14 studies showing masks to be ineffective against the coronavirus. 

“Coronaviruses are 0.1 to 0.125 microns – 100 times smaller than fine dust particles,” wrote AFLDS Legal Director David Dalia in the brief. “CDC July 2020 statistics show that 85% of people who were sick with COVID-19 reported ‘always’ or ‘usually’ wearing a mask. Only 3.9% of COVID-19 victims reported never wearing a mask. These numbers were nearly identical in the control group – i.e., those not getting sick with COVID-19.” 

AFLDS said mask-wearing to keep out a virus “is akin to putting up a chain link fence, in the vain hopes of keeping out mosquitos.” 

More than that, some research points to masks causing more deaths from COVID-19. A study by Dr. Zacharias Fögen found that counties with a mask mandate had significantly higher case fatality rates than counties without a mask mandate. The researcher found that deep re-inhalation of droplets and virions caught in masks may make COVID-19 infection more likely and more severe. 

“Masks are ineffective, unsanitary, and in many ways they harm the wearer physically and psychologically,” AFLDS affirmed. “In fact, coercing or requiring a person to wear a mask without his or her consent sets the stage for contracting a virus more likely, overrides patient consent, and makes the consequences of that infection worse.” 

Manookian told Frontline News she is optimistic about the appeal's outcome:

We believe the district judge’s decision was correct and that the 11th Circuit will uphold on the merits. Recent rulings by both the US Supreme Court and the 11th Circuit have made clear that federal agencies must follow the law - whether we are in a state of emergency or not. That CDC failed to do so and imposed this mandate on tens of millions of healthy Americans who ride buses, trains, and planes every day as they go about their daily lives is a blatant violation of our rights and freedoms. 

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