(Video: Fox News)
Though a majority of Americans seemingly applauded a federal judge’s ruling that the Centers for Disease Control and Prevention (CDC) lacked authority to enforce a mask mandate on public transportation, President Joe Biden’s administration was none to ready to cede its power and as the nation awaits the results of a Department of Justice-led appeal, one legal analyst suggested the case may hinge upon the definition of one word.
Former Deputy Independent Counsel Sol Wisenberg joined Fox News host and former prosecutor Trey Gowdy to discuss the decision by U.S. District Judge Kathryn Kimball Mizelle on “Sunday Night in America.” After explaining that the CDC’s regulatory authority pertaining to the spread of communicable diseases was granted by Congress, he stipulated that this power included regulations on sanitation.
“So, the CDC passed the mask mandate saying that’s part, that’s sanitation that helps to stop the spread of communicable diseases,” Wisenberg explained.
Simplifying Mizelle’s ruling, he went on, “This judge said two things. Number one, you didn’t follow the proper procedure. You’re supposed to give 30 days for notice and comment and the Biden administration didn’t do that. They said it was an emergency.”
“Number two, the judge said a mask really doesn’t sanitize…Sanitizing means you are cleaning something that’s already infected. When you wear a mask…you’re preventing future infection. And that’s the part of her opinion that’s been really criticized,” Wisenberg expressed.
“So, if I understand you correctly,” Gowdy recapped, “part of this federal judge’s decision came down to the definition of the word ‘sanitize.'”
“I mean, it’s not like she’s sitting at her desk saying, ‘you know what, I don’t like masks,’ or, ‘I don’t like the Biden administration,'” the former prosecutor offered before stating, “That’s not what judges do. Maybe she’s right, maybe she’s not. But it comes down to her interpretation of something the CDC did, right?”
Wisenberg agreed with Gowdy’s conclusion and opined that some of the criticism may be valid but that her ruling did not violate judicial procedure. As she noted herself in the ruling, “Because our system does not permit agencies to act unlawfully even in pursuit of desirable ends, the court declares unlawful and vacates the mask mandate.”
After discussing that the question of the executive’s authority in this instance stemmed from Congress’s decision to abdicate their role in lawmaking to unelected bureaucrats in varied regulatory positions, the conversation came back around to feckless political finger-pointing by those elected to represent the voters on these issues.
“Where is that whole respect for the federal judiciary thing?” Gowdy asked about the left’s reaction to Mizelle’s ruling. “They’ve been pretty unsparing in their criticism of her.”
“Trey, of all the hypocrisies in modern political life, there is nothing like the hypocrisy of both parties when it comes to judicial activism,” Wisenberg argued. “There are really no principles at stake. And you’re absolutely right, the judges who invalidated, issued nationwide injunctions invalidating President Trump’s policies on immigration, border control and national security, which he absolutely had the authority to do, and yet they did it repeatedly and there was no criticism of them by the left. So, you’re right. Total hypocrisy by both parties.”
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