{"id":1463251,"date":"2022-05-04T08:01:31","date_gmt":"2022-05-04T12:01:31","guid":{"rendered":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/?p=1463251"},"modified":"2022-05-04T08:01:46","modified_gmt":"2022-05-04T12:01:46","slug":"anthony-fauci-who-is-not-a-legal-expert-criticizes-judge-for-lacking-medical-expertise","status":"publish","type":"post","link":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/anthony-fauci-who-is-not-a-legal-expert-criticizes-judge-for-lacking-medical-expertise\/","title":{"rendered":"Anthony Fauci, Who Is Not A Legal Expert, Criticizes Judge For Lacking Medical Expertise"},"content":{"rendered":"<aside class=\"mashsb-container mashsb-main mashsb-stretched\"><div class=\"mashsb-box\"><div class=\"mashsb-count mash-medium\" style=\"float:left\"><div class=\"counts mashsbcount\">28<\/div><span class=\"mashsb-sharetext\">SHARES<\/span><\/div><div class=\"mashsb-buttons\"><a class=\"mashicon-facebook mash-medium mash-nomargin mashsb-noshadow\" href=\"https:\/\/www.facebook.com\/sharer.php?u=https%3A%2F%2Fwww.conservativenewsdaily.net%2Fbreaking-news%2Fanthony-fauci-who-is-not-a-legal-expert-criticizes-judge-for-lacking-medical-expertise%2F\" target=\"_top\" rel=\"nofollow\"><span class=\"icon\"><\/span><span class=\"text\">Facebook<\/span><\/a><a class=\"mashicon-twitter mash-medium mash-nomargin mashsb-noshadow\" href=\"https:\/\/twitter.com\/intent\/tweet?text=&amp;url=https:\/\/www.conservativenewsdaily.net\/breaking-news\/?p=1463251&amp;via=ConservNewsDly\" target=\"_top\" rel=\"nofollow\"><span class=\"icon\"><\/span><span class=\"text\">Twitter<\/span><\/a><a class=\"mashicon-subscribe mash-medium mash-nomargin mashsb-noshadow\" href=\"#\" target=\"_top\" rel=\"nofollow\"><span class=\"icon\"><\/span><span class=\"text\">Subscribe<\/span><\/a><div class=\"onoffswitch2 mash-medium mashsb-noshadow\" style=\"display:none\"><\/div><\/div>\n            <\/div>\n                <div style=\"clear:both\"><\/div><\/aside>\n            <!-- Share buttons by mashshare.net - Version: 4.0.47--><div><img decoding=\"async\" src=\"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-content\/uploads\/2022\/05\/50172815718_978a0e4383_k.jpg\" class=\"ff-og-image-inserted\" alt=\"image\" \/><\/div>\n<p>Since a federal judge struck down the federal mask mandate, commentators have parsed the decision from both <a href=\"https:\/\/thehill.com\/opinion\/judiciary\/3473616-was-mask-mandate-judge-a-hypocrite\/\">left <\/a>and <a href=\"https:\/\/www.nationalreview.com\/2022\/04\/whats-wrong-and-whats-right-about-judge-mizelles-mask-mandate-decision\/\">right<\/a>, claiming the ruling was legally suspect. While their legal arguments are wrong, at least they\u2019re not as wrong as Anthony Fauci\u2019s response before (where else?) the TV cameras.<\/p>\n<p>On April 18, Judge Kathryn Kimball Mizelle <a href=\"https:\/\/www.documentcloud.org\/documents\/21636220-047124235804\">ruled<\/a> that the Centers for Disease Control mask mandate for public transportation exceeded the agency\u2019s delegated powers and violated the <a href=\"https:\/\/www.archives.gov\/federal-register\/laws\/administrative-procedure\">Administrative Procedure Act<\/a> (APA), the law that governs rule-making by federal agencies. Mizelle found the mask mandate was not within the regulatory powers Congress granted to federal health authorities.<\/p>\n<p>But even if the scope of the mandate was within the power granted by Congress, the CDC failed to follow the procedural requirements of \u201cnotice and comment,\u201d failed to establish \u201cgood cause\u201d for why they bypassed the notice and comment requirement, and failed to adequately explain the reasons for the mandate, as the APA requires.<\/p>\n<p>Mizelle did not rule on whether the mask mandate was necessary to curb Covid-19, whether masks protect the wearer and others from Covid-19, whether the benefit of mask-wearing outweighs the risks associated with masking, and other public health considerations. In other words, Judge Mizelle analyzed the <em>legal<\/em> issues in the case; she did not second-guess the CDC\u2019s <em>medical <\/em>judgment.<\/p>\n<p>That, however, didn\u2019t stop Fauci, a non-lawyer, from criticizing the judge\u2019s ruling. In an <a href=\"https:\/\/www.cbsnews.com\/news\/anthony-fauci-covid-mask-mandate-judge\/\">interview<\/a> on April 21, 2022, Fauci said the ruling set a \u201cdangerous precedent\u201d and opined that courts and the legal system should not be involved in public health matters. That, he said, should be left to public health experts.<\/p>\n<p>Fauci apparently prefers government by experts and doesn\u2019t understand, or chooses to ignore, that the CDC is not granted unfettered discretion by either the Constitution or Congress to make laws. The interviewer failed to challenge Fauci about his misguided view of our system of government and his promotion of the \u201crule of experts\u201d instead of the \u201crule of law.\u201d<\/p>\n<p>Fauci was, after all, commenting on a <em>legal<\/em> matter appropriately brought before a U.S. federal court. The irony is that while the non-doctor judge did not second guess a <em>medical <\/em>question, non-lawyer Fauci was perfectly comfortable second-guessing a <em>legal <\/em>question.<\/p>\n<h2>Legally, the Judge Was Correct<\/h2>\n<p>Under Article I of the <a href=\"https:\/\/www.archives.gov\/founding-docs\/constitution-transcript\">Constitution<\/a>, \u201c[a]ll legislative powers\u201d are vested in Congress. That means Congress, not administrative agencies, has the exclusive power to make the laws.<\/p>\n<p>In furtherance of that power, Congress has granted some rule-making authority to federal agencies. But Congress also spelled out in the APA the procedural steps required if an agency issues regulations that have the force and effect of law. The question before Mizelle was whether Congress delegated the CDC the authority to issue the mask mandate and, if so, whether the CDC followed the procedural steps required by the APA.<\/p>\n<p>The CDC relied upon the Public Health Services Act of 1944, <a href=\"https:\/\/www.law.cornell.edu\/uscode\/text\/42\/264\">42 USC \u00a7 264(a)<\/a>, for the authority to issue the mandate:<\/p>\n<blockquote class=\"wp-block-quote\">\n<p>\u00a0The\u00a0Surgeon General, with the approval of the\u00a0Secretary,\u00a0is authorized to make and enforce such\u00a0regulations\u00a0as 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\u00a0regulations,\u00a0the\u00a0Surgeon General\u00a0may 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.<\/p>\n<\/blockquote>\n<p>The government argued that requiring travelers to wear masks on airplanes and in transportation hubs fell within the \u201csanitation\u201d methodology authorized by the statute. Mizelle was not persuaded. She found that the ordinary meaning of \u201csanitation\u201d as used in \u00a7264(a) at the time the act was adopted referred to cleaning or sanitizing property by destroying or removing the contamination, in this case the Covid-19 virus. Because facial coverings do not destroy or remove the Covid-19 virus from tangible property, she held the mask mandate was not within the power delegated to the CDC by Congress.<\/p>\n<p>Reasonable minds may differ on how to interpret the specific language of \u00a7264(a). The government argued for a much broader interpretation of sanitation. Nevertheless, the CDC\u2019s authority to impose such regulations is also limited by the APA.<\/p>\n<p>In other words, assuming Judge Mizelle erred in interpreting the scope of the CDC\u2019s authority under \u00a7264(a), the APA sets out the procedural steps required to issue a binding regulation. Mizelle found that the CDC did not follow the steps required by Congress.<\/p>\n<h2>How the CDC\u2019s Mask Mandate Broke the Law<\/h2>\n<p>First, <a href=\"https:\/\/www.law.cornell.edu\/uscode\/text\/5\/553\">5 USC \u00a7 553(b)<\/a> required the CDC to provide the public with notice of the proposed rule, give the public at least 30 days to submit comments, and then to consider those comments before adopting the final rule. It was undisputed that the CDC did not do any of those.<\/p>\n<p>Instead, the CDC argued that the notice and comment provisions did not apply because the mask mandate was not a rule binding the public. As the court noted, \u201cthe government abandoned that untenable position on review.\u201d<\/p>\n<p>The second argument the government put forward was the mask mandate fell within the \u201cgood cause\u201d exception to the notice and comment requirement. To invoke that exception, the law requires the agency to show that notice and comments are \u201cimpracticable, unnecessary, or contrary to the public interest.\u201d The government\u2019s justification for using this <a href=\"https:\/\/www.govinfo.gov\/content\/pkg\/FR-2021-02-03\/html\/2021-02340.htm\">exception<\/a> was:<\/p>\n<blockquote class=\"wp-block-quote\">\n<p>Considering the public health emergency caused by COVID\u201319, it would be impracticable and contrary to the public\u2019s health, and by extension the public\u2019s interest, to delay the issuance and effective date of this Order [to provide for notice and comment].<\/p>\n<\/blockquote>\n<p>In other words, notice and comment was not required because the CDC didn\u2019t think it should be. Judge Mizelle found that the unsupported assertion of the CDC\u2019s employees was not sufficient to satisfy the burden Congress placed on the agency to justify its failure to provide notice and comment before imposing the mandate on the traveling public. The rule of law cannot be ignored because some experts find it inconvenient.<\/p>\n<h2>The Mask Mandate Was Arbitrary and Capricious<\/h2>\n<p>Finally, the court found the mandate was arbitrary and capricious because the CDC did not set out their reasoning for the rule as required by the APA. Like the \u201cbecause we said so\u201d justification for ignoring the notice and comment requirements, the CDC did not explain why masking was required in some instances but not in others.<\/p>\n<p>For example, the mandate created exceptions for passengers who were eating, drinking, had medical conditions that precluded them from wearing masks, and for those under two years old. There may well be legitimate reasons to draw the lines where the CDC drew them, but the law requires the rulemaking agency to explain why it drew the line where it did. Even experts must abide by the rule of law.<\/p>\n<p>No, Fauci, the judge\u2019s ruling did not create a \u201cdangerous precedent,\u201d it vacated the mandate because the CDC did not follow the law. Besides, if Mizelle was wrong in her legal analysis the court of appeals will reverse her; there\u2019s a check on her authority. The dangerous precedent is Fauci\u2019s view that experts can impose rules with no check on their authority. Our system is based on the rule of law, not the rule of experts. Even public health experts must understand that.<\/p>\n<hr class=\"wp-block-separator\" \/>\n<p>\n  Professor Woodruff is a retired Army lawyer and retired law professor. He served 22 years on active duty in the Army Judge Advocate General\u2019s Corps and taught law for over 25 years at Campbell University School of Law in Raleigh, North Carolina.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Since a federal judge struck down the federal mask mandate, commentators have parsed the decision from both left and right, claiming the ruling was legally suspect. While their legal arguments<\/p>\n","protected":false},"author":742,"featured_media":2315279,"comment_status":"open","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"_mo_disable_npp":"","fifu_image_url":"","fifu_image_alt":"","footnotes":""},"categories":[],"tags":[],"class_list":["post-1463251","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry"],"_links":{"self":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/posts\/1463251","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/users\/742"}],"replies":[{"embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/comments?post=1463251"}],"version-history":[{"count":0,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/posts\/1463251\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/media\/2315279"}],"wp:attachment":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/media?parent=1463251"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/categories?post=1463251"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/tags?post=1463251"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}