Give the CDC back its power to issue mandates

On January 29, 2021, the Centers for Disease Control and Prevention (CDC) required everyone to wear a mask in mass transit, including airports and airplanes. That ended abruptly two months ago when a federal judge in Florida struck down the CDC’s mask mandate.

The ruling was politically divisive and sparked criticism from public health advocates, but many passengers rejoiced, unmasked and cheered mid-flight. Whatever you think about masks, the judge’s opinion will be disastrous for the future of pandemic prevention and control in America.

In essence, the ruling would handcuff CDC when the next crisis hits. The judge ruled that the CDC did not have the authority under the Public Health Service Act (PHSA) to require a non-intrusive and highly effective intervention — face masks. This jeopardizes the CDC’s most basic powers to combat the spread of infectious diseases – whether COVID-19 or deadlier ones. In response, the Biden administration appealed to the US Circuit Court of Appeals for the Eleventh Circuit.

Our legal team has just filed an amicus brief on this appeal, signed by 20 of the nation’s leading health organizations and 231 public health and legal experts. These public health leaders spoke with one voice, arguing that the CDC must have sufficient authority to act decisively and quickly when the next public health crisis hits — and it will. We argue that the CDC’s core competencies include evidence-based action “to prevent the spread of infectious diseases in and through the United States.” The PHSA clearly empowers the CDC to require masks amid a massive and ongoing public health emergency.

If the CDC can’t use a scientifically proven method to curb transmission in a pandemic, we’re not sure what the agency could do. In short, the CDC acted at the height of its authority.

The order was signed by an unprecedented number of six former CDC directors who have spearheaded the nation’s response to every modern health emergency — from SARS, MERS and Zika to Ebola and H1N1 influenza. With decades of experience, they are uniquely positioned to assess the health challenges facing America and the tools needed to combat the spread of novel infectious diseases. The letter’s signatories include 24 deans of public health, medicine, nursing and law, and over 100 scholars and health practitioners — including a former FDA commissioner and health officers from state, local, territorial and tribal agencies.

The organizations signing the order are unrivaled for their leadership in medicine and public health, from the American Public Health Association (150 years old, with 22,000 public health professionals); the Association of American Medical Colleges (consisting of all 155 accredited medical schools in the US); the Infectious Diseases Society of America (12,000 epidemiologists and other infectious disease professionals); and the Robert Wood Johnson Foundation (the nation’s largest philanthropic foundation dedicated to health).

“If the CDC can’t use a scientifically proven method to curb transmission in a pandemic, we’re not sure what the agency could do.”

Let’s look at the basics of health law explained in the amicus brief.

First, the CDC’s mask mandate is a direct exercise of the agency’s core and longstanding regulatory functions in response to a global pandemic that has killed more than a million Americans and six million worldwide. The CDC and its predecessors have long exercised regulatory authority at national and state borders. Essentially, the CDC is acting to protect Americans when no state alone could do so.

Second, the brief explains the meaning of the word “hygiene,” which Judge Kathryn Kimball Mizelle — the federal judge for the Florida District Court — bizarrely interpreted. She decided that masks were not a form of “hygiene.” Our summary shows that “sanitation” had broad public health implications when the PHSA was enacted in 1944. Authoritative dictionaries of the time defined hygiene as follows: “Development and application of measures for the maintenance and promotion of public health; Removal or neutralization of elements harmful to health; practical application of sanitary science.” As early as 1948, when the World Health Organization was founded, its most important public health agreement was called “International Sanitary Regulations”.

Of course, there is more to the PHSA than just the single word “hygiene”. It also states that the CDC has the authority to prevent the introduction, transmission, or spread of communicable diseases and “may provide such inspection, fumigation, disinfection, sanitation … and other actions as it deems necessary.” This last sentence “and other measures” provides additional support for the mask requirement. The phrase “other action” should not be given an arbitrarily narrow meaning that the CDC literally puts on in handcuffs. It is crystal clear that a transport mask mandate fits easily into the plain text of the PHSA.

Our large and diverse team of friends— including public health officials, public health and legal experts, and the country’s leading medical and public health organizations — have decades of unparalleled public health expertise. We all believe that the CDC must have basic regulatory powers to stop the spread of communicable diseases. Health emergencies will become more and more frequent and severe in the future.

With the CDC’s hands tied behind their backs, our nation will be decidedly less safe and secure. Give the CDC back its power to issue mandates


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