"There’s certainly something to be said for Biden having this difficult political decision taken out of his hands (even as public opposition to this particular policy might be overstated).
But the method also matters: a single district judge in Florida effectively ending a policy nationwide. This is something — usually called a 'national,' 'nationwide' or 'universal' injunction, or in this case technically a 'vacatur' — that has happened with increasing frequency in recent years. And the trend has spurred a discussion about whether it’s good for our system of government for individual judges to wield such power so frequently."
Writes Aaron Blake in "The rise of solo judges nixing nationwide policies" (WaPo).
As Blake notes, the opposition to this sort of judicial power shifts from one partisan side to the other and depends on who is in power. It's hard to decide whether to be for or against it across the board. But it's only one judge until there's an appeal, and in the case of the mask mandate, you can read between the lines that Biden is glad a judge ended it for him.
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71 comments:
"even as public opposition to this particular policy might be overstated" Aaron Blake claims in writing without evidence.
They will reinstate it in the next surge- count on it. The opposition to the mask mandates isn't overstated at all- just watch the videos from the airplanes where it was announced that the passengers could take off the masks. How many morons like wearing masks for hours at a time?
The Left never complained when a single federal judge in Hawaii stopped Trump's "Muslim ban."
Why the appeal then?
The judiciary rules this country. Not what founders had in mind. The judiciary create laws, they vacate laws, they enforce executive orders. And yet, the latest addition to the highest judicial branch in the US can identify what a women is. Who says this country is circling the drain?
There are a lot of people that are ignoring the foundational principles of our country.
In this case a judge had to seize power to issue this ruling.
But before that the CDC seized power to pass a stupid national mask mandate.
The problem is that there have been no consequences for government officials who act like Nazi's. Far too much deference has been given to the bureaucratic tyranists.
Democrats are smearing the judge for having been appointed by Trump. That is probably a trend.
As you say, the merits (or not) of a universal injunction depend greatly on whose ox has been gored. The Progs had no problem with a single judge in Hawaii throwing out any number of executive orders when DJT was issuing them.
Pass the popcorn.
"There’s certainly something to be said for Biden having this difficult political decision taken out of his hands...."
A POLITICAL decision? (!?)
Part of problem is judge shopping. Solution might be to require suits against government seeking such relief to be filed in court of claims in DC.
even as public opposition to this particular policy might be overstated
or, might NOT be overstated.. Poor lil WaPo lives in a bubble
So; a single district judge in HAWAII is doublePlusGood? a single district judge in Florida is doublePlusUngood?
I wish there was some old saw; about male and female aquatic waterfowl, and cooking fluids,
that might be useful
Can't get through the WAPO pay wall. Did Mr. Blake mention the famous Hawaiian judge who enjoined much of the Trump program??
This whole phenomenon doesn't garner any attention until it's done by a "conservative" judge.
For some reason I thought judges' rulings applied only in their own districts, or circuit court districts at most. So a decision like this in the Ninth would not have effect anywhere else until the USSC ruled.
Actually, I don't think Biden's comment means anything. He spoke before his handlers told him what his position is! As you can see, they are not smart enough to let him take the win. As to the process of one judge voiding a national policy, everyone in media was fine with it when they were jurisdiction-shopping to thwart Trump policies.
Was on a Delta plane yesterday. Maskless. As were the airports. As usual the only people wearing masks were state slaves toiling for TSA. Our masters are sad this is over. 10% of Americans think Covid is a thing.
"And the trend has spurred a discussion about whether it’s good for our system of government for individual judges to wield such power so frequently."
Now they're concerned? Sure.
"Up to them"? Biden is (typically) clueless and/or dishonest.
No, it wasn't up to them. The CDC issued a mandate, requiring masks on all public transportation. You would get thrown off a plane, if your 2-year-old wouldn't keep a mask on his face. It happened, along with lots of other enFORCEment.
Maybe it will be up to us, if there's not a successful appeal. But Biden ought to be honest enough to admit that if it was up to him, it wouldn't be up to the rest of us.
Of course Biden was noncommittal. The media should know by now not to ask him anything when the Easter Bunny isn't around.
It's fun to see the left crying about national injunctions as soon as one is issued against one of their pet causes. I think it matters what the injunction is barring. Some rulings, like a mask mandate on airplanes, has to be national. Others are national out of hubris. The problem can be mitigated with a fast-tracked appellate process. Maybe even an automatic one where the prosecution is assumed to appeal unless it positively states that it does not.
even as public opposition to this particular policy might be overstated
Good to see that WaPo has its ear to the ground...
The right has complained about this for years, but we lost the debate, so game on.
he method also matters
You're damned right it does - the CDC's failure to follow the appropriate method is what led to the decision. This is not about a judge imposing her judgment on the science of masking over that of the CDC, it is about the CDC (and congress, Biden, etc.) having had more than two years to look at the issues and they still can't be bothered to make policy through normal channels - everything remains an "emergency."
Here, it wasn’t a question of a nationwide injunction, but rather of striking the rule down completely. The rule was stricken down in response to summary judgement motions, as a matter of law. As a SJ motion, a court has to assume reasonably disputed facts against the motioning party (hence the judge’s assumption of the usefulness of the masking mandate - she was merely interpreting the evidence most favorably towards the respondent (the government), as required by SJ motions).
The judge ruled that the rule was void ab initial, because the FJB Administration did not have the statutory power to have enacted those rules or regulations, and had not conformed to APA (Administrative Procedures Act). I remember studying the APA over 30 years ago, when I was in LS. It hasn’t changed much since then. When the federal government wants to issue rules or regulations that determine rights of those outside the government, it has to go through a mandatory Notice and Comment process. This is black letter Admin Law. The FJB Administration didn’t bother. That question was not at issue here. It was accepted by all parties, as well as the court. No Notice. No Comment period, nor were comments considered before issuing the rule. The only question then was whether their actions fell into a narrow, essentially “emergency”, exception. The burden of justifying bypassing Notice and Comment was on the government. They made a single conclusory statement at the time. Nothing more. She pointed to a recent Medicare case, where four pages were utilized for this justification. That’s how it is supposed to be done. If the burden had been on the plaintiffs here, then maybe the single conclusory statement by the govt might have been sufficient. But then the issue would not have been ripe for a SJ motion. Also note, that if the government had gotten away with this, Notice and Comment would be dead, because they could just say, as they did here, essentially that it was an emergency, and nothing more.
As noted above, the big difference here is that the rule was struck down as a matter of law, and not in equity. It wasn’t an injunction. If it’s illegal in the MD FL, it’s illegal everywhere. How not? Is the rule only illegal in the MDFL, the 11th Circuit, etc? There is no balancing of equities, determining likelihood of success, etc. here. It was purely a question of law.
So, in response to her 59 page well reasoned opinion, the response on the left has been to attack the judge personally, and not on the merits of her decision. Even the hard left, activist, 9th Circuit would have to stand on its head to reverse her. And, of course, this is the 7/4 Republican nominated 11th Circuit.
BTW, writing this, I kept noticing how convenient the use of male/female pronouns was. The judge presents as a woman, and I didn’t have to check around, to know the proper pronoun. Whenever I used “she” or “her”, everyone knew that I was talking about the judge here. Easy Peasy. It’s the convenience factor that the insistence on personal pronouns seeks to destroy.
"a single district judge in Florida effectively ending a policy nationwide"
That is absurd. But since everyone only cares about results, I''m happy in this case.
"And the trend has spurred a discussion about whether it’s good for our system of government for individual judges to wield such power so frequently."
OK, progs, you first.
Writes Aaron Blake in "The rise of solo judges nixing nationwide policies" (WaPo).
"you can read between the lines that Biden is glad a judge ended it for him"
He should be. Saves him trouble with his base, keeps him from pissing off more people. But since he's barely in charge, will the actual administration let him get away with just being glad or try to reimpose prog rule?
Postoperative wound infections and surgical face masks: a controlled study
The science and physics of masks do not support a mandate in specialized, let justify their popular use. The pathological products, including biohazards, psychological dysfunction, and false faith have clear and progressive consequences.
A District Court Judges is ABSOLUTELY without LEGITIMATE power to void|vacate|annul ANYTHING by a "purported" nationwide injunction.
Now it is possible for Great White Father to speak with forked tongue :
blame Judge for no mandate as de facto reality!
One Republican judge strikes down the mandate and as a result Biden and the Dems fold? Yeah, I think we can be sure that they wanted the mask mandate to go - at least till after the fall elections. But what we really need is a judge to rescind the pipeline and drilling bans - or we'll freeze next winter. In November, then or thereabouts, Biden will be announcing that we don't have furnace oil to heat us through the Wisconsin winter since we aren't energy independent and have cut off Russian oil. That will happen unless we start drilling now since the start-up will take time. We have an Energy Secretary and a Department of Energy but they are focused on solar power and wind. That won't heat us in Wisconsin. Just, as right now, solar power and wind won't supply power and fertilizer to plant, tend and harvest crops. But the Secretary of Agriculture is doing nothing to help farmers. We in the US may not run out of food but they will in Africa. Where's BLM when you need them?
If there’s “something” to be said, one can trust the excremental WaPo will not be saying it.
Separately, the propensity of government to exceed constitutional boundaries is a first-order forcing of progressive corruption. The judge is right on the compelling legal issue, and, whether by chance or choice, is right on the science and public interest, too.
I thought those solo judges nixing national issues were all in Hawaii.
The way to stop judges from reversing administrative regulations is for Federal bureaucrats to stop issuing regulations that wildly exceed any Constitutional or legislative authority they may have, and to stop declaring false emergencies to justify ignoring legally required procedures and simply ruling by decree. Blocking this kind of over-reach is one of the primary reasons there is a Federal judiciary in the first place.
I am generally opposed to a single judge making a nationwide injunction. The thing is I opposed it during the Trump administration as I watched it happen over and over again. The same people who object to this ruling were cheering those on. Oh well.
Stop asking me to conserve things that no longer exist. If the Left is going to change the rules, then they either have to live by the rules or we have to come to a mutual agreement that the new rules are stupid and we need to agree on a new set of rules, perhaps the old rules. The days of one-sided disarmament are over. Escalation will be met in kind.
I think this sort of world will be a miserable one, but the alternatives are worse.
Will the Biden administration appeal the decision. Well Slow Joe Biden never missed an opportunity to miss an opportunity. Obozo was correct when he said, Never underestimate Joe's ability to fark things up. My bet is that Team Biden will appeal.
readering said...Part of problem is judge shopping. Solution might be to require suits against government seeking such relief to be filed in court of claims in DC.
It's the lion's share of the problem. Both this ruling and the one in Hawaii that it's commonly compared to were correct to be national in scope as a state-level ruling would make no sense. I don't know if this one is right or not; I do know that the problem with the Hawaii ruling is that it was wrong. It was a politically motivated decision that undermined public safety. We need more professionalism at the trial level and, as you suggest, a dedicated court of original jurisdiction for certain types of cases makes sense.
Bruce Hayden, that was an excellent comment; thanks for taking the time.
I'm looking at reports from Shanghai, and their lockdown. Masks are going to comeback, and maybe more lockdowns. I'm thinking Biden, and the democrat state governors will need something to help them fraud-the-vote........AGAIN.
On the other hand, no one is going to listen to Dr. Fauci's advise.
Blogger readering said...
Part of problem is judge shopping. Solution might be to require suits against government seeking such relief to be filed in court of claims in DC.
Yup. "Nobody here but us chickens." I guess the Hawaiian judges were all at the beach.
Great comments here. These keep me sane.
The CDC, like the FDA, the WHO, etc., proved itself to be a political entity, far more than a medical or scientific one. But even if the decision for a mask mandate were 100% legitimate, the CDC still abused its authority.
It's very obnoxious to see people who should know better slander the judge as ideological and incompetent. The president can still make an argument, and Congress can still give the CDC more statutory authority. We have separation of powers for a reason. And the airlines etc. could mandate masks themselves if they considered it necessary.
I have a friend with a severe medical issue who, due to Covid, wears a mask, or stays at home. Never once has he asked that others wear a mask on his behalf, except in his own home. The bullying and caterwauling of the elites is getting very tiresome.
“A District Court Judges is ABSOLUTELY without LEGITIMATE power to void|vacate|annul ANYTHING by a "purported" nationwide injunction.”
Not. An. Injunction. See above.
Since Marbury v. Madison, 219 years ago, our courts have had the power to declare laws invalid. Here, it wasn’t a law that the court held invalid, but rather rules that were enacted in violation of our laws. Someone needs to be able to tell the Executive that they have gone too far, and are essentially ruling by fiat. If not, then we are no longer living in a country governed with the consent of the governed, but instead by an autocratic despot. Over the last two centuries, the primary constraint on the Executive to abide by the laws of the land is the Judiciary, doing, as here, throwing out Executive excesses and overreaches. The rules were illegal. The underlying statutes did not give the Executive the power to implement them, nor to bypass the APA when doing it. And that is the job of the Judiciary in our form of government. And it starts in the District Courts, like this one.
As of this morning , china joe's doj is going to fight it . So I guess China joe is not running the country.
tommyesq @ 10:57: "...it is about the CDC (and congress, Biden, etc.) having had more than two years to look at the issues and they still can't be bothered to make policy through normal channels - everything remains an 'emergency.'"
Bingo. And why should CDC take the risky step of, you know, trying to assemble actual evidence to support the cost/benefit tradeoff of wearing masks versus not? Can you imagine the series of experiments it would have to sponsor and review and weigh in order to arrive at a reason-based rule? Can you imagine the circus-like proceedings as the various advocates fought for their side?
Much better to punt and, when the court tosses your ukase, shrug and move on.
Hawaiian Judges are suddenly a problem?
Funny how that happens the instant a ruling comes down that the Elites don't like ...
Here is Blake's take on the Hawaiian judge when he went rogue on Trump's "travel ban."
Aaron didn't notice a problem with overly expansive judicial rulings at the time.
Bruce Hayden @ 11:00: excellent comments. And a nice clarification that this ruling was on the law, not in equity, so the description of it being an injunction is wrong. No need to balance the equities as per usual injunctive relief process; the thing failed outright.
Also nice to point out how the childish new game of arbitrary pronouns is a quick way to destroy important information in a statement and force everybody to work harder to convey (and comprehend) what is meant.
The virus itself might appeal the decision by upping its virusing.
Readering: Part of problem is judge shopping. Solution might be to require suits against government seeking such relief to be filed in court of claims in DC.
Is this parody?
If so, it’s brilliant.
The partial solution to over reaching agencies is to modify the administrative procedures act to require the rule have a specific statement of intent, a limiting principle and citation of authority and an end date. I think both sides of the isle could agree with this if they weren't corrupt. It would also be helpful if Congress limited itself to single topic bills with the same requirements.
It will be interesting to read the reasons that the CDC comes up with to say that the travel mask mandate is no longer necessary.
Could be a classic. Something for the textbooks.
doublePlusUngood
========
as mathSupremacist -> doubleMinusUngood
the administrative procedures act >> needs to be annulled
======
if that deals with delegation of authority - then each bill should be required to specify delegation process to fought over politically and not in ?portmanteaux?
NPR drags out a liberal professor from the second tier Georgia State Law School who alleges that the federal judge in FL got it wrong. LOL. I'm well versed in statutory interpretation and the judge got it exactly right. I guess the lib law professor doesn't know about noscitur a sociis. I learned that at Creighton Law.
"In her opinion, Mizelle says that a common way judges decide the meaning of words in laws is to look up dictionary definitions that were contemporaneous with the passage of the law. In this instance, that's 1944.
Mizelle says "sanitation" could have been taken to mean either actively cleaning something or measures to keep something clean, but ultimately settles on the former definition.
"Wearing a mask cleans nothing. At most, it traps virus droplets," Mizelle wrote. "But it neither 'sanitizes' the person wearing the mask nor 'sanitizes' the conveyances."
TSA will no longer enforce travel mask mandate after a federal judge strikes it down
TSA will no longer enforce travel mask mandate after a federal judge strikes it down
Mizelle says her reading is bolstered by the fact that other words listed alongside "sanitation" in the 1944 law — such as "fumigation" or "pest extermination" — refer specifically to cleaning something or trying to wipe out a disease.
But Fuse Brown says that while this understanding of "sanitation" may be true for lay people, it's not how the term is used in the public health field or understood by the U.S. Centers for Disease Control and Prevention, which issued the mandate.
"Sanitation was just the old way in public health parlance of taking traditional public health steps to prevent the spread of disease," she said."
At the bottom of all this is the Democrat's existential fear that people will have to show up at poling places and identify themselves come November of this year.
You know, like just about every country in the world does.
First Biden said of the ruling that it was up to individuals to mask or not. Then a short while later he did a 180 and was waiting for his CDC and DOJ to decide. Now it looks like his administration will challenge the ruling. Probably the most transparent clue that Joltin’ Joe is not in charge of our government besides his gaffs and acting clueless while at a podium like he did last week in North Carolina.
I hope he challenges the ruling vigorously and loses in court. Based on the reaction of airline passengers when they got to “de-mask” in mid-flight the other day, it might be even more votes the Dems will lose in November. And if he loses in court, how many sitting Dem Congressmen / women and sitting Dem Senators as well as Dems challenging for those seats and for positions in state governments will side with the ruling just like they currently are jumping on the “keeping Title 42” bandwagon to save their jobs in light of overwhelming public opposition to the unfettered illegal immigration by Biden currently overrunning our country?
Bruce Hayden said...
Here, it wasn’t a question of a nationwide injunction, but rather of striking the rule down completely. The rule was stricken down in response to summary judgement motions, as a matter of law.
==========
I still dont know from any of the reporting who sought SummaryJudgement! and why it took so long?
why did not / could not any of the public carriers have sought one earlier?
Blogger Dave Begley said...
... Mizelle says "sanitation" could have been taken to mean either actively cleaning something or measures to keep something clean, but ultimately settles on the former definition.
===========
to understand new improvedd meaning for ;sanitation;
try on for size = cleansing and associated fascist liberal - social activities
Here in the Philly area I will get on a regional rail train tomorrow in the suburbs with no mask, get off in the city with no mask, walk through a terminal with no mask and yet, if I walk into a store I will have to put a mask on. It is the height of lunacy here. I got on the train Tuesday morning just after they repealed the ban so I was the only maskless person in the train car. On the ride back it was about 25% maskless. Tomorrow will be an interesting datapoint. Fortunately my destination is a private club and no masks required. This is the height on lunacy though.
I love all the bleating about a lowly district court judge quashing a federal edict.
Funny how all the progs applauded that Hawaii judge who blocked Trump's mandate against admitting
people from certain Muslim nations, and his restrictions on what relatives of resident immigrants could be admitted.
Because Orange Man Bad!
“I still dont know from any of the reporting who sought SummaryJudgement! and why it took so long?
why did not / could not any of the public carriers have sought one earlier?”
There were cross motions for Summary Judgement - 2 by the plaintiffs, and 1 by the defendants (essentially the government). The Judge granted the plaintiffs’ motions, and denied that of the defendants.
As for timing, I expect that the judge was expecting the government to drop the mandate. That way she could moot the case, and flush it that way. That’s the way that judges tend to operate - they are very busy and often look for the easy way out. Her voluntary civil docket is liable to be set into at least 2023. Here, her 59 page opinion took a lot of work. Time that she could have used in working down her docket.
They really shouldn't let Biden address the public until they have decided what his policies are, and written them down for him. Using short words, in large letters.
I thought those solo judges nixing national issues were all in Hawaii.
There was also a trans/homosexual judge in California, ruling on marriage and couplets. A ruling that launched political congruence ("=") as a national movement, and fostered bigots to target Mormons, specifically, and others generally, but, curiously, not colored... people of color... black, brown, who may have supported civil unions for couples, and couplets, alike. Freedom from religion, separation of church and state, are a many selective, opportunistic, exclusive, Pro-Choice "ethical" thing.
Thanks, Bruce Hayden. My local reported the court's action as issuing a "national injunction." Glad to be set straight. Sick of all sides taking the position that if the result is "right", then the procedure used to get there must be "right" too. Yechh!
What Bruce Hayden said.
Static Ping said...
I am generally opposed to a single judge making a nationwide injunction. The thing is I opposed it during the Trump administration as I watched it happen over and over again. The same people who object to this ruling were cheering those on. Oh well.
Stop asking me to conserve things that no longer exist. If the Left is going to change the rules, then they either have to live by the rules or we have to come to a mutual agreement that the new rules are stupid and we need to agree on a new set of rules, perhaps the old rules. The days of one-sided disarmament are over. Escalation will be met in kind.
I think this sort of world will be a miserable one, but the alternatives are worse.
4/20/22, 11:56 AM
THIS!!!
"Asked about the decision by a U.S. district judge halting the mandate this week, President Biden ..."
Instead, why don't they ask Jen Psaki what she meant when she reacted to the decision by saying "we feel ... [p]ublic health decisions shouldn't be made by the courts."
Hey, Jen, your penumbra is showing!
Is she going to come out of the closet as a textualist?
https://grabien.com/file.php?id=1509461
Read the opinion-
The same authority the CDC used for eviction moratorium is the same they used for mask mandates.
The Supreme Court struck that down last year.
Easy Peasy.
Why it took so long...we are no longer a country of laws, and very few lawyers/judges are willing to lose their official communist party in good standing card.
Readering: "Part of problem is judge shopping. Solution might be to require suits against government seeking such relief to be filed in court of claims in DC. "
That's the court that Harry Reid packed, right?
"First Biden said of the ruling that it was up to individuals to mask or not. Then a short while later he did a 180 and was waiting for his CDC and DOJ to decide."
You are talking about a guy who doesn't know where he is half the time, nor what office he actually holds.
Readering: "Part of problem is judge shopping. Solution might be to require suits against government seeking such relief to be filed in court of claims in DC."
Original Mike: "That's the court that Harry Reid packed, right?"
Indeed.
In fact, thats the court Reid packed after nuking the filibuster for judicial appointments at that level.
And he did that PRECISELY so key court proceedings would be under far far left democratical partisan judicial control.
Which is why readering "helpfully" (wink wink) suggests all important cases be routed thru democratical kangaroo courts.
Well, Ann, presumably you remember "three judge panels" that were required to strike down legislation on constitutional grounds? Who got rid of them? Why? They should be restored. The current situation of finding a "Hawaiian judge" or (now) a "Tampa judge" is like what we had in the Robber Baron period where competing injunctions were issued by judges looking for bribes.
I think, Ann, you are wrong in saying the use of single-judge, nationwide injunctions "swings" from left to right to right to left. Until Trump's appointees, most "conservative" or "Republican" district court judges were judicial minimalists -- they were against the use of their power to strike down laws except in egregious cases, and tended to keep the scope of their injunctions limited. So Trump's judges are, perhaps, just doing what Democratic judges have done all along.
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