Is that a good thing? Yeah, probably. Here’s why.

Earlier this week Attorney General Brnovich joined 20 other states in filing a lawsuit in federal court challenging the CDC’s 2021 emergency regulation requiring people over the age of two to wear masks on public transportation, airplanes, trains, and transport hubs like airports and train stations. [See the CDC Rules: 86 FR 8025 – Requirement for Persons To Wear Masks While on Conveyances and at Transportation Hubs 86 Fed. Reg. 8,025.]

The crux of their argument is that they think CDC exceeded their statutory authority under the Public Health Service Act [42 U.S.C. § 264(a)]. They believe that law doesn’t authorize CDC to establish their emergency rule requiring masks in those environments. The suit also argues that CDC didn’t use proper administrative procedures when they established the rule (failing to consider lesser alternatives and not following the APA’s notice and comment requirements).

So, is the lawsuit a good thing or a bad thing?

In the long run, it’s probably a good thing. Why? Because we need to know what the courts think about CDC’s existing emergency authority so congress can fix it (if necessary) before the next public health emergency comes. We also need to know what the courts think about the process that CDC used to administratively establish the rule, so congress can fix that before the next pandemic too (if needed).

Brnovich and the other 21 states filed the suit in the US District Court – Middle District of Florida- Tampa Division. Under normal federal rules of civil procedure, defendants typically have 21 days to respond to a complaint, which sets off an additional period of scheduling, motions, discovery, and the like. Judges’ schedules are an additional factor. Given this normal course, it seems unlikely that any action will be taken before May.

Once adjudicated, we’ll get more clear information from the courts about the extent of the CDC’s authority to quickly establish rules during public health emergencies and whether there is latitude for the agency to take some shortcuts while establishing regulations during public health emergencies.

I’m certain it’s not Attorney General Brnovich’s intent to do Public Health a solid, but I think that’s exactly what he’s done.

Note: According to Jennifer L. Piatt, JD, Deputy Director of the Network – Western Region Office,“…the US Supreme Court has already started to give us a sense of how broadly it views the CDC’s authority to act in times of crisis. In Alabama Association of Realtors v. HHS, the Supreme Court indicated that CDC did not have the authority to issue a nationwide eviction moratorium under the Public Health Service Act, 42 U.S.C. § 264(a). This is the same section at issue in this new case on transportation masking requirements. Alabama Realtors has thus already demonstrated that the Court is willing to limit CDC’s authority under this section of the Public Health Service Act (PHSA), and it’s possible that the Court’s language in that decision may illuminate or drive some of the lower courts’ interpretations in this case.

A transportation masking order is different from an eviction moratorium, so we can’t be certain how this case will come out. With that said, this challenge has the potential to further cabin the CDC’s ability to respond in emergency circumstances based on judicial interpretations of the PHSA.”

If so, the court would be providing valuable information with which Congress could and should use to amend the Public Health Service Act before the next public health emergency.

Resource Note: When you have questions about public health law that come up in the course of your work, a terrific resource is the Network for Public Health Law. They are a terrific, free, resource that can help you think through your legal questions by researching laws and case law to help you make decisions. It’s not legal advice, but a terrific resource. Here’s a place to start when you have questions: How We Can Help – Network for Public Health Law.