Health & Technology

The judge’s decision to remove the masked duty depends on her mispronouncing a word torture

Supreme Court Justice Amy Coney Barrett has a surefire method for determining when judges will decide cases based on their own policy preferences rather than sticking to the law. “Read comments,” she told an audience at the Ronald Reagan Presidential Library this month. Does it sound like “an honest and persuasive attempt… to determine what the Constitution and precedent require?” Or is its reasoning more “political” than “judicial”?

That seemed like pretty good advice, so I applied it to U.S. District Judge Kathryn Kimball Mizelle’s recent decision that disable transport mask authorization, issued by the Centers for Disease Control and Prevention. I am disappointed to report that Mizelle’s reasoning is more of an advocate’s summary, or perhaps an article of a candidate’s position, than a judicial opinion, and a It’s particularly remarkable there.

I am disappointed to report that Mizelle’s reasoning is more like an advocate’s summary, or perhaps an article about the candidate’s position, than a judicial opinion.

Her decision was based almost entirely on mispronouncing one word, “sanitize,” which implies a restrictive definition that challenges linguistic conventions and discards the simple meaning of 1944. Public Health Service Act, established the federal government’s authority to combat infectious diseases. Mizelle’s supporting quotes are erroneously selected, akin to outright deception. The Department of Justice had the good fortune to announce Wednesday that it will appeal her rulinga move that is more likely to succeed for the poor reason I detail here.

Mizelle’s Heart 59 pages of comments her conclusion that the CDC is not authorized under Public Health Service Act making face coverings mandatory on public transportation, despite a statute that empowers the federal government to “prevent the entry, transmission, or spread of communicable diseases” by means including “toilet”.

Mizelle’s ‘rigorous legal analysis’, as she puts it, depends on a rational interpretation of the word ‘sanitation’. On the face of it, the word sure would seem to connote preventing the spread of coronavirus through cough or sneeze droplets. Not so, Mizelle said. Flipping through many dictionaries, she discovered that “sanitize” can have two meanings. “First, sanitation can refer to measures of cleaning something or getting rid of rubbish,” she explains. “Second, hygiene can refer to measures of keeping something clean.”

Treating the two cherry-picked definitions as if they were mutually exclusive, Mizelle then performed a series of linguistic gymnastics to come to the conclusion that there was only the first definition — “active cleaning.” ” – is included in the statute. Because “wearing a mask does not clean anything” but only “traps virus droplets,” this task turns out to be outside the statutory powers of the CDC.

That argument has been result-oriented in the extreme. While Mizelle states that the health service act “can refer to aggressive measures to clean something up.” or to preserve the purity of something” (her italics), which is a false dichotomy. The two definitions are most naturally read as complements, not alternatives. “Hygiene” can mean cleaning or prevention or both, depending on the context, in this case prevention of infectious disease. It’s odd to assume that Congress intended to allow the CDC to clean up the mess but not stop it. As conservative blogger (and THINK contributor) Ilya Somin observed, Mizelle’s reasoning will prevent CDC from enforcing regulations against defecation on the flight deck, limiting wiping afterwards.

Even worse, Mizelle simply omitted more extensive dictionary definitions around the same time as the enactment of the law. 1949 Merriam-Webster Pocket Dictionaryfor example, there is only one definition of hygiene: “Using scientific hygiene practices to prevent disease.” Similarly, the 1937 Oxford English Dictionary (which happens to be on my bookshelf) defines sanitation as “the invention and application of means for the improvement of sanitary conditions”. Webster’s 1936 Collegiate Dictionary has the same effect, defines hygiene as “the use of sanitary measures”.

These definitions explicitly include both cleaning and prevention, and there is no good legal reason for Mizelle to omit them from her opinion. A lawyer performing that stunt will be reprimanded, and possibly fined, for misleading the court. No defense from a judge.

Many Latin “-tion” words – formed by turning words into nouns – are similarly comprehensive. Considering the statutory permission for “drugs” in the hospital, this can mean both use of therapeutic drugs and physical drugs we. It would make no sense to only apply it to pills while excluding doctors and nurses from dispensing them to patients. “Separation” can refer to a state of separation as well as the act of separation. For a MAGA-inspired example – and a real possibility in Florida or Texas today – imagine a law requiring “separation of boys and girls bathrooms” in schools. Could Mizelle envision it calling only to control existing facilities and not to specify or build separate bathrooms from the ground up?

Mizelle’s reliance on half-defining is a game of the judicial hand, giving the appearance of reasoning out of thin air. Without the previously unknown principle of radical linguistic dissection and a certain exclusivity to which she applies, her opinion would collapse into an eminently political argument with no basis. any legal department.

In Barrett’s terms, it is dishonest and unconvincing to deprive the natural and all-encompassing meaning of “sanitation,” and it certainly has no basis in “Constitution and precedent.” However, it aligns with the conservative project in thwarting the federal government’s Covid-19 mitigation efforts.

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