Revisiting the Biden Admin Legal Position on Masks

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Commentary

Last year, it seemed that masks were gone for good. U.S. District Judge Kathryn Kimball held that Biden’s national mask mandate on airplanes was “illegal.” Airlines and airports immediately revoked their mask requirements. Flight attendants sang in celebration, passengers cheered, and companies welcomed the change in policy.

While Americans rejoiced, the Biden administration worked behind the scenes to ensure that it could reimplement mask mandates at any time, in any place, for any reason.

The humiliation exercise never had a scientific basis. Existing air filtration systems made the threat of viral transmission on aircrafts negligible. Studies found that there was “no direct evidence” of COVID-19 being transmitted aboard aircrafts.

Despite the data, President Biden issued nationwide mask mandates in his first hours in office. His administration appealed Judge Kimball’s decision last April. “Our focus here was seeing what power we had to preserve,” explained White House Press Secretary Jen Psaki.

The case was dismissed as moot because the court found, “there is not a grain of evidence that the CDC has any plans to promulgate an identical mandate.”

Recent news suggests that prediction may have been wrong. The COVID regime appears to be revamping for a resurgence of mandates and potential lockdowns. CNN ran a headline Wednesday urging readers to “break out the masks against Covid.” The federal government has entered into COVID-related contracts with consultants and medical equipment providers to enforce “safety protocols” beginning in the next two months.

The return of COVID hysteria begs the question: what “power” did Jen Psaki and the White House want to preserve? Their legal briefs appealing Judge Kimball’s decision offer clues.

In court, the Biden administration argued that mask mandates should be permissible even if there is no evidence to support them. Further, government lawyers wrote that these mandates should be permissible to any extent that bureaucrats deem necessary, even if the risk of COVID is nonexistent.

That is not hyperbole. Opponents of the mandates argued that the government should have “controlled trials” to provide evidence of efficacy and potential negative side effects before implementing universal masking.

The Biden administration responded that the government did not need to provide any evidence or rational basis for its orders. Instead, “the CDC’s determination that there was good cause” should be sufficient. Government edicts should not be subject to judicial scrutiny, according to the government’s brief.

Further, there should be no limit to that authority, according to the Biden administration. “It was equally permissible for the CDC,” the brief argued, “to make the masking requirement applicable to all passengers ... regardless of whether there is any indication that the plane is diseased or dirtied.”

It’s not difficult to discern what we might call the Biden Doctrine of administrative rule-making. It means that the agencies can order whatever they want, whether or not there is any plausible basis in law or whether or not there is any rational basis for it at all. It is a doctrine of bureaucratic supremacy.

From the Brownstone Institute

Views expressed in this article are opinions of the author and do not necessarily reflect the views of The Epoch Times.