" The CDC claims that the mask mandate policy is authorized by 42 USC Section 264(a), the very same law that agency used to try to justify its nationwide eviction moratorium, which was invalidated by the Supreme Court in August. While I argued against the legality of the eviction moratorium from the very beginning, it seems to me that the transportation mask mandate rests on firmer grounds."
42 U.S. Code § 264 - Regulations to control communicable diseases
(a)Promulgation and enforcement by Surgeon General
The [Surgeon General] with the approval of the[ Secretary,] is authorized to make and enforce such[ regulations ]as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession. For purposes of carrying out and enforcing such regulations,may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary.
(b)Apprehension, detention, or conditional release of individuals
Regulations prescribed under this section shall not provide for the apprehension, detention, or conditional release of individuals except for the purpose of preventing the introduction, transmission, or spread of such communicable diseases as may be specified from time to time in Executive orders of the President upon the recommendation of the [Secretary]…"
…the key difference between the eviction moratorium case and the present one is that the mask mandate doesn’t have to rely on an ultra-broad interpretation of the catch-all “other measures” provision of the law. It can instead be defended as a “sanitation” measure. It seems to me that mandatory masking to prevent the spread of a respiratory virus at least plausibly fits within the meaning of “sanitation.”
"Judge Mizelle recognizes that this is the key issue in the case, and she relies on a narrower definition of sanitation. It’s worth noting that the implication of her approach is that the CDC never had the power to impose a mask mandate. It’s not a matter of the effectiveness of masking or the extent of the threat posed by the disease:
[S]anitation as used in the [Public Health Services Act] could have referred to active measures to cleanse something or to preserve the cleanliness of something. While the latter definition would appear to cover the Mask Mandate, the former definition would preclude it. Accordingly, the Court must determine which of the two senses is the best reading of the statute….
The context of § 264(a) indicates that “sanitation” and “other measures” refer to measures that clean something, not ones that keep something clean. Wearing a mask cleans nothing. At most it traps virus droplets. But it neither “sanitizes” the person wearing the mask nor “sanitizes” the conveyance…."