^{The Mask Mandate Case: Issuing Your Own Opinion}

You are the Judge. This case is yours to decide. . .

Background:

By way of background, the Mask Mandate requires that "a person must wear a mask while boarding, disembarking, and traveling on any conveyance into or within the United States." The government maintains that the Mask Mandate is a necessary public health measure and that the Center for Disease Control (CDC) acted within the authority that Congress granted it in issuing the mandate. Plaintiffs disagree and claim that the CDC is acting beyond its authority.

Instructions:

Step 1:

It is your job to decide who is right and explain the reasons for your decision. To do so, review the Statement of the Case and interpret the Public Health Services Act to determine whether the CDC has authority to issue the Mask Mandate. The opinion should begin with a brief statement of the facts, a statement of the issue before the court (that is the question that the Court is being called upon to decide), an analysis of the applicable rules/law (applies the law to the facts of the case), and a conclusion. Please upload your Opinion to Canvas.

Step 2:

You will then join your groups to discuss your findings. Each person should take turns describing their opinion. Once you have done that, take a vote to determine who wins and identify a spokesperson for your group, who will announce the reasoning and decision of your "Court".

Statement of the Case:

In December 2019, a highly contagious respiratory virus colloquially known as COVID-19 began spreading throughout the world. A month later, the Secretary of Health and Human Services declared COVID-19 a public health emergency. And then on March 13, 2020, President Trump declared the COVID-19 outbreak a national emergency.

COVID-19 continued to spread throughout 2020 despite experiments with "unprecedented movement restrictions and social distancing measures." By the end of 2020, approximately twenty million Americans had been infected with COVID-19 and over 360,000 Americans had died from it. The fall and winter of 2020 also brought a spike in new COVID-19 infections, due in part to emerging variants of the virus, some of which were more severe than the original strain and moreeasily transmissible. The number of new cases peaked in early January 2021 and decreased steadily in February.

On January 21, 2021, one day after taking the oath of office, President Biden issued Executive Order 13998. The Executive Order recognized the threats of the continuing COVID-19 pandemic and reasoned that mask-wearing "can mitigate the risk of travelers spreading COVID-19." Approximately two weeks later, on February 3, 2021, the CDC published the Mask Mandate.

In the Mandate, the CDC explained that COVID-19 "spreads very easily and sustainably between people who are in close contact." This spread occurs mainly through the transfer of "respiratory droplets" from one person to another. Masks, the CDC found, prevent this spread by "blocking exhaled virus" and "reducing inhalation of these droplets." Because COVID-19 can be spread by "pre-symptomatic" and "asymptomatic" individuals infected with it, the CDC found that masks are "one of the most effective strategies available for reducing COVID-19 transmission."

Because "[a]dministrative agencies are creatures of statute," they "possess only the authority that Congress has provided." In issuing the Mask Mandate that requires most "persons to wear masks over the mouth and nose when traveling on any conveyance . . . into or within the United States," the Director of the CDC relied on a section of the Public Health Services Act of 1944 (PHSA) for authority. . . That provision empowers him to promulgate regulations aimed at "identifying, isolating, and destroying" diseases:

The [CDC], with the approval of the [Secretary of Health and Human Services], is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession. For purposes of carrying out and enforcing such regulations, the [CDC] may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary.

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When "determining the meaning of a statutory provision," the Court "look[s] first to its language, giving the words used their ordinary meaning." The opening sentence of 264(a) grants the CDC power to issue regulations that "in [its] judgment are necessary" to prevent the spread of communicable disease. The second sentence "informs the grant of authority by illustrating the kinds of measures that could be necessary: inspection, fumigation, disinfection, sanitation, pest extermination, and destruction of contaminated animals and articles."

The second sentence provides for "inspection, fumigation, disinfection, sanitation, pest extermination, destruction . . . and other measures." 264(a). A requirement that individual travelers wear a mask is not inspection, fumigation, disinfection, destruction, or pest extermination, and the government does not contend otherwise.Instead, it argues that the Mask Mandate is a "sanitation" measure or an "other measure" akin to sanitation. Plaintiffs disagree, arguing that a mask requirement is outside the scope of sanitation.

The PHSA does not define "sanitation." If "a term goes undefined in a statute, [courts] give the term its ordinary meaning." Courts often start with dictionaries. Given that the statute was enacted in 1944, the Court looks to dictionaries from the early and mid-20th century to begin its analysis. They provide two senses of sanitation that are relevant here. First, sanitation may refer to measures that clean something or that remove filth, such as trash collection, washing with soap, incineration, or plumbing. See Webster's New Int'l Dictionary 2214 (William Allan Neilson et al. eds., 2d ed. 1942) (defining "sanitation" to include "rendering sanitary"); Funk & Wagnalls, New Standard Dictionary 2172 (Isaac K. Funk, et al. eds., 1946) (defining "sanitation" as "the removal or neutralization of elements injurious to health"). Second, sanitation may refer to measures that keep something clean. SeeFunk & Wagnalls,supra at 2172 (the "devising and applying of measures for preserving and promoting public health"); Bernard S. Maloy, The Simplified Medical Dictionary For Lawyers (2d ed. 1951) ("The use of sanitary measures to preserve health."). Examples of this sense of sanitation include air filters or barriers, masks, gowns, or other personal protective equipment.

Put simply, sanitation as used in the PHSA could have referred to active measures to cleanse something or to preserve the cleanliness of something. While the latter definition would appear to cover the Mask Mandate, the former definition would preclude it. Accordingly, you must determine which of the two senses is the best reading of the statute.

Context matters too.

To aid in this statutory interpretationinquiry, dictionaries provide a helpful starting point. To know which meaning Congress selected in 264the sense of cleaning or the sense of preserving cleanlinessthe Court must also rely on the statute's context, including the surrounding words, the statute's structure and history, and common usage at the time.