Halting Mask Mandate Right, But Should One Judge Be Able to Do So?

Steve Levy

Wednesday, April 27th

The recent decision by U.S. District Court Judge Kathryn Kimball Mizelle to overturn the Center for Disease Control’s (CDC) mandate for mask wearing in various transportation systems was proper on its merits and from a policy perspective, but the question remains whether a single jurist should have the ability to overturn presidential policy.

While the left was having conniptions decrying the overreach of this Trump appointed judge, we can’t forget that right leaning pundits a few years back had bemoaned the faulty rulings of single district court judges overturning former President Trump’s immigration policies, thereby keeping the illegal immigration floodgates open.

It’s time for both sides to come together and agree that cases seeking to overturn presidential action must be made directly to a three member court of appeals —  and that decision must be immediately reviewable by the U.S. Supreme Court within 30 days.

This was the proposal I laid out in a chapter of my 2020 book, “Solutions to America’s Problems.”

This possible solution was indeed prompted by my outrage that illegal immigrant advocates, such as the ACLU and radical nonprofits, would forum shop for the most far-leaning leftist judge they could find in order to overturn policy implemented by the Trump administration to get some kind of control over our porous border.

It took months before the Supreme Court ever got to the issue of whether Trump’s Remain in Mexico policy could remain in effect. Earlier, a single liberal activist judge, Jon Tigar of the Northern California District Court, ruled that Trump had no such authority.

While the Supreme Court eventually overturned that terrible decision, the damage was already done.

That single judge had the authority to put a hold on the president’s decision, thereby allowing thousands of illegal aliens to gain access into our nation throughout that duration.

Those illegal entrants are here to stay, and that has placed American taxpayers on the hook for millions of dollars as a result.

Few, if any, on the Democratic side complained of a sole jurist back then perpetuating the evisceration of our border.

But now Democrats are aghast that a Trump appointee has turned the tables by ruling that the CDC exceeded its authority by imposing mask mandates.

Judge Mizelle did not take a policy position on masking, and clearly noted that mandates could be proper, so long as our elected representatives in Congress passed legislation to do so, as opposed to unelected bureaucrats, who did not follow proper procedure.

Citing a Supreme Court case decided earlier this year, the judge, on p.9 of her holding, stated: “Because ‘administrative agencies are creatures of statute’ they ‘possess only the authority that Congress has provided.'”

National Federation of Independent Business v. Department of Labor, 142 Sup Court 661 (2022).

This writer will remain consistent on this, suggesting that while the judge was correct in her decision, she should not have the sole power to overturn the edict of a president — even one with whom this writer vociferously disagrees.

A case such as this one should have been able to proceed directly to an appellate court.

Even scholars such as Law Prof. Daniel Walters of Penn State University, who disagreed with Mizelle’s decision, underscored the one judge dilemma: “Here you have a single unrepresentative judge setting policy for the entire nation. There’s no opportunity now for those who are adversely affected by this injunction to have their day in court.”

Exactly.

Now that both sides have been burned through this process, perhaps a consensus can be built to change this fickle system once and for all.

Steve Levy is President of Common Sense Strategies, a political consulting firm. He served as Suffolk County Executive, as a NYS Assemblyman, and host of “The Steve Levy Radio Show.” He is the author of “Solutions to America’s Problems” and “Bias in the Media.” www.SteveLevy.info, Twitter @SteveLevyNY, [email protected]. Read Steve Levy’s Reports — More Here.