The challenge to the federal government’s travel-mask mandate continues.

The U.S. Department of Justice says it will appeal a federal-district court’s April 18 holding that the Center for Disease Control, or CDC, exceeded its authority by imposing the mask mandate.

Please note what this challenge is not about: Whether wearing masks during travel is a good or a bad idea, or whether you may wear a mask if you wish. Neither of those is at issue here.

So if you believe wearing a mask is a good idea and you want to continue doing so, nothing in the federal-district court’s decision questions that.

The decision, written by Judge Kathryn Kimball Mizelle of the federal-district court in Tampa, Fla., is a model of originalism, not activism. In 59 clearly written pages, Mizelle sets forth the issues and carefully explains in plain English why the CDC lacks the authority it asserts it has.

Mizelle may or may not be aware of Supreme Court Justice Clarence Thomas’s admonition that the “Court and judges generally should adopt clear, bright-line rules that … you can explain to the gas-station attendant as easily as to a law professor.”

Yet Mizelle has at least in effect put Thomas’s admonition into practice. As a result, her decision, though long, is an easy read, and not just to those used to reading such things.

This column lacks the space to discuss the whole decision, yet let’s have a look.

We start, as always, with this premise: The federal government has only those powers that We the People have given to the federal government via the Constitution. This is a premise of ordered liberty.

We don’t start with the premise that government may do everything except what the Constitution forbids. That would be a premise of statism, and ultimately of tyranny.

Now to the mask mandate: Consistent with a federal-executive order issued Jan. 21, 2021 – one day after Inauguration Day – the CDC on Feb. 3, 2021, issued the mask mandate.

An agency, such as the CDC, has only those powers that Congress has constitutionally delegated to the agency.

For the mask mandate, the CDC relies on Section 264(a) of the Public Health Services Act of 1944. In short, and as quoted by Mizelle, Section 264(a) empowers the CDC to implement and enforce necessary regulations to “prevent the introduction, transmission, or spread of communicable diseases” by providing for – here comes the list especially important here – “inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so contaminated or infected as to be sources of dangerous infection to human beings, and other measures, as … may be necessary.”

The “other measures” clause isn’t a wild card under which anything goes. Rather, Mizelle recalls the U.S. Supreme Court has held that such “a residual clause is ‘controlled and defined by reference to the enumerated categories … just before it.”

Mizelle notes the CDC contends the mask mandate “is a ‘sanitation’ measure or ‘other measure’ akin to sanitation.”

The mask mandate can’t otherwise fall under Section 264(a). Why? Because the mask mandate doesn’t involve inspection, fumigation, disinfection, pest extermination, or destruction of animals or articles.

Mizelle acknowledges that “sanitation” standing alone can mean both cleaning and preserving cleanliness, and holds that as Section 264(a) uses “sanitation,” it means only cleaning: “The context of (Section) 264(a) indicates that ‘sanitation’ and ‘other measures’ refer to measures that clean something, not ones that keep something clean. Wearing a mask cleans nothing. … Because the CDC required mask wearing as a measure to keep something clean … the (m)ask (m)andate falls outside of (Section) 264(a).”

Thus, the district court holds the mask mandate is unlawful.

The analysis of the meaning of Section 264(a), and other analyses, go further, yet that’s the core of the analysis of the meaning of Section 264(a).

Now let’s see what happens in the federal court of appeals. That may turn, as federal appeals often do, on which three judges of the federal-appellate court are randomly assigned to the panel to hear this action during the initial consideration of the appeal on the merits.

Meanwhile, if you’re reading this on an airplane, you may take off your mask.

Your call.

One place you’ll find Justice Clarence Thomas’s admonition is on page 41, footnote 44, of Dr. Randy Elf’s 2016 law-review article, at https://works.bepress.com/elf/18

COPYRIGHT ç 2022 BY RANDY ELF