Advisory Opinions - Federal Judge Strikes Down Mask Mandate

Episode Date: April 22, 2022

David and Sarah dive into the nationwide injunction ending the Biden administration's travel mask mandate, with Sarah adopting a "nope, yep, yep" approach to the decision and David countering with a "nope, yep, nope." They also discuss Gov. Ron DeSantis and the First Amendment and conclude with a rather amusing example of Uber getting exactly what it asked for… and not liking it at all.   Show Notes: -Decision that struck down the federal mask mandate -David Latt: “Musings On Mizelle's Mask-Mandate Magnum Opus” -Ilya Somin: “Federal Court Rules Against CDC Transportation Mask Mandate” -Andrew McCarthy: “What’s Wrong and What’s Right about Judge Mizelle’s Mask-Mandate Decision” -O'Hare Truck Service, Inc. v. City of Northlake, 518 U.S. 712 -Bloomberg: “Trump Lawyer Sticks Uber With $91 Million Arbitration Bill for 'Reverse Bias' Claims” Learn more about your ad choices. Visit megaphone.fm/adchoices

Sasquatch here. You know, I get a lot of attention wherever I go. Hey Sasquatch, over here! So, when I need a judgment-free zone, I go to Planet Fitness. Get started for $1 down and then only $15 a month. Offer ends April 12th. $49 annual fee applies. See Home Club for details. You ready? I was born ready. Welcome to the Advisory Opinions Podcast. I'm David French with Sarah Isker. And my goodness, Sarah, we've got content today. And Monday. We've had to already split it up into today and Monday.

There was too much to even, you know, we always bite off more than we could chew. Even we looked at the smorgasbord and said too much. We also need to talk about why does Ron DeSantis need to know about the O'Hare truck service of North Lake, Illinois? Why that might become quite relevant to him quite soon. We've also got a wild Uber situation to talk about. I mean, a really wild Uber situation to talk about. I mean, a really wild Uber situation to talk about and an NYU anti-Semitism controversy, if we can get to it. It's a it's a lot. It's a lot. So, Sarah, why don't we start with the ruling, a little set the stage. I'm on my flight to DC and I think, am I going to spend the money on the Wi-Fi for this short little flight? Sure, I'll spend the money. And first thing that pops up, nationwide injunction, no more masks, which then leads to this really interesting

conversation with my seatmate beside me as to whether or not we should just go ahead and remove our masks, which we wrestled with it for a bit and decided no, because it wasn't widely known yet. No one knew in the plane and we just look like a complete bunch of jerks. But as of that moment, other flights did it, but I don't think it was passenger initiated. That's fair. And I was actually, you know, to take the more nuanced view of this, if you get on the flight, believing that there is a mask mandate, there is something a little bit unfortunate about in the middle of the flight, when you had no ability to consent one way or the other, as in, you know, you are someone who is a high risk person and you weighed the risk

and decided, well, if I'm wearing a mask and everyone else is wearing a mask, I can get on this flight. I'm not totally sure it's appropriate to change the rules halfway through. Right. No, I agree. I agree. Even though the actual rules were I'm wearing a mask and everyone else is wearing a mask when we're not drinking Diet Coke and eating pretzels. I have so many thoughts about how stupid the mask mandate is. I mean, of course, as the mom of a kid who's approaching two, I've been watching this very closely because a two-year-old's not going to wear a mask, which means I can't fly until I can get this kid to wear a mask. Who knows how long that'll take. So I am relieved because David, we are getting on a plane tomorrow. Oh, nice. Okay. Well, I came back on Wednesday,

walked into Reagan Airport, and it's just really, it was an interesting microcosm of the different cities. So I'm in DC. And what percentage of people would you guess were walking around Reagan airport still wearing masks? What would be your guess? Oh, 80%. Yeah. Easily correct. Easily correct. Landed in Nashville. What percentage of people were wearing masks in Nashville? seven percent that's generous that's generous it might have been one percent it might have been maybe um but no one's tuned in to hear our just general abstract thoughts on masks and airports people want to give judge my zells abstract thoughts about maskson Air Force. Which now govern us all. David, obviously disclaimer at the front of this. Kat Kimball Mizell worked with me at the Department of Justice. So I've worked with her. She was a colleague of mine. I know her pretty

well. And she's a kind, smart person. On top of all that, she is the snappiest dresser. If you walk through the Federalist Society convention next year and just spot a woman between the ages of 30 and 40 who is the best dressed person in the room, I assure you it is Kat Mizell. But here she has stepped into the spotlight. Yes. With a long opinion on this. And, you know, I thought David Latt did something pretty fun when he wrote this up. So, and as I said, David Latt's original jurisdiction newsletter is just a treat all the time.

So, you know, you're covering something that could be either really culture worry or really dry if you wanted to get into the legal stuff. So how did David Latz start it? I'm a liberal or progressive. What are my talking points? And I want to read some of them because I think it sets the stage nicely. Eric Lutz, Vanity Fair. A number of people were particularly bewildered as to how a 35-year-old Donald Trump appointee rated not qualified by the American Bar Association was able to effectively decide public health policy for much of the nation. I mean, really? That feels like an interesting- Yeah, where have you been? So first of all-

Where have you been, Eric? Where have you been? Where have you been? That feels like an interesting... Yeah, where have you been? So first of all... Where have you been, Eric? Where have you been? She is 35. While on the young side,

that's not even close to the youngest district court judge in the country at this point. So I found that criticism to be a little bit silly. If he had said 25, I'd be like, no, fair enough. She was rated not qualified by the ABA because of her age, not technically her age, but her number of years since passing the bar exam and practicing. So they rate anyone, and I forget whether it's 12 years or something, whatever it is, if you fall below that number, you are rated

not qualified by the ABA to be a judge. Look, fair enough. I think number of years is relevant. I just don't know that it should be an on or off. In this case, she had worked in private practice, had worked in the Department of Justice in a senior position with the associate's office, clerked at the Supreme Court for Justice Thomas. At some point, how is she less qualified than someone who, I think she was one year under. Okay, so someone who was two years graduated before her, but has spent that whole time at the same law firm doing doc review. Like we don't know what that associate did at the law firm. Um, clearly she is more qualified than that person. So it's over and under inclusive, but fine. That's the ABA

qualification rating. Um, it's just, but it does not mean not smart. I mean, that's, that's the, and I'm not, I don't know her like you do, but I'm one degree removed from her through multiple people. And they universally say she's quite sharp. So, Oh, she's sharp, David. She's like a, like a thumb tack. Um, uh, and, and then of course the, you know, this 35 year old who was rated not qualified was able to decide public health policy for much of the nation. How about the district court judge that's decided who can come into the country when they did the nationwide injunction for the travel ban or immigration policy, or, I mean, we can go on and on of individual district judges who have issued nationwide injunctions because there's dozens and dozens during the Obama administration, during the Trump

administration. So this idea that they suddenly discovered that that's outrageous that a single judge in the country appointed by a president from the opposing party can issue a nationwide injunction for something that the president did? Oh my heavens to Betsy. Yeah. Okay. But now David Latt, I'm a conservative or libertarian. What are my talking points? Josh Hinderaker, Powerline Post. Judge Mizell's reasoning is sound, particularly with regard to the CDC acting without statutory authorization. Liberals are predictably up in arms about today's Okay. Well, also, there are people, smart people, including people on the right who will discuss Ilya Somin, a professor at George Mason Law School, who very much have read Judge Mizell's opinion. And there are things that, I mean, obviously, if this were just a

slam dunk case and no one could possibly disagree with it, then it wouldn't be April 2022 before this happened, David. So we'll get into all of that. but I just thought it was fun to start with the punditry before what she actually decided. All right. So, David, there's three buckets. Let's do three buckets on this opinion. Yes. Bucket number one, the CDC was not granted this authority from Congress, the Public Health Services Act of 1944, also known as PASHA, says the agency can fight disease, quote, providing for such inspection, fumigation,

disinfection, sanitation, pest extermination, destruction of animal or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings or other measures as in its judgment may be necessary. So the CDC hangs the airline and public transportation mask mandate on sanitation, that the CDC can provide sanitation to prevent infection or contamination from dangerous to human beings, dangerous to human beings. So the first bucket is she said the word sanitation doesn't mean a mask mandate. That means cleaning something. The mask doesn't clean something. It prevents something from getting dirty. That's just different. So Congress didn't do it. So just a textual reason on that. Second, she said they did not follow notice and comment

under the Administrative Procedures Act. They skipped it, saying that it was basically an emergency instead of giving the public 30 days to comment on it. Her point was they didn't have good cause to skip it. And also a little bit of like, this might have been arbitrary and capricious to begin with, right? The idea that you can take it off while you're drinking your diet Coke. Um, you know, the ages, the, you know, airplanes have to have it, but not other areas, blah, blah, blah. Okay. And then the last bucket

that's, I think, interesting to talk about is the remedy bucket, the nationwide injunction. Um, and what we can nerd out for a little while on vacature under the APA versus nationwide injunction. And we can do that, David, because in the last episode, we talked about nationwide injunctions. And so this can just be part two of our nationwide injunction conversation, part two, bucket three. All right, David, those are the three buckets. Yes. Take them as you will so i'm just gonna my top line on her opinion is yep nope yep no wait it's nope yep nope nope nope nope nope interesting i i okay i think i'm nope yep yep okay all right so here's let me start with uh bucket one nope all right so and and uh so your

uh Ilya Soman has a good analysis we'll put that in David Latt has a good analysis we'll put that in the show notes Andy McCarthy has a good analysis in National Review we'll put that in show notes and I'm in the Andy McCarthy camp of nope, yep, nope. And my initial nope is based on the idea on a couple of things. One, if you look at the language of, if you look at the language, it says the Surgeon General, with the approval of the Secretary of Health and Human Services, 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 possession, United States or possessions, or from one state or possession into any other state or possession.

Full stop. So that part is actually important to me. That is a separate sentence. They are authorized to make and enforce such regulations to prevent the introduction or transmission of a communicable disease. Full stop. Now, the next sentence is the one. Yeah, go ahead. Okay. For purposes of carrying out and enforcing such regulations, the CDC may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles, and 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. So here's where

I think she goes wrong on two counts. One is to essentially read the first sentence that the, where we, the, the, the sentence authorizing the eight secretary of HHS to make it enforce such regulations that in his judgment are necessary to prevent the introduction transmission, blah, blah, blah. As essentially meaningless compared to the second sentence, which is that means,

well, what does that mean? That means inspection, fumigation, disinfection, sanitation. I don't think that's the proper way to read it. I don't think the Supreme Court says that that's the proper way to read it. I think the Supreme Court says that the way to read that is the second sentence is that these things are more illustrative and not exclusive. These are among the ways that the CDC can deal with infectious diseases. And so I think that that initial sentence is much more potent than she reads it. And then the second thing is that when she defines sanitation,

defines sanitation, she says that there are a couple of different definitions. It's rather either to cleanse something or to preserve its cleanliness. And she essentially says, you got to pick one of these. Is it cleansing or preserving cleanliness? And she says it means cleansing, but I think it can mean to cleanse something and to preserve its cleanliness. You don't have to pick between those two. They're both different forms of sanitation. So I think it can mean to cleanse something and to preserve its cleanliness. You don't have to pick between those two. They're both different forms of sanitation. So I think in a nutshell, my problem with bucket one, Sarah, is she under reads the first pair, first sentence. She, she too exclusively defined sanitation and therefore her reasoning on that

element of, of the, of section two, 264 fails. So you're with me. You're on the nope on that as well. I'm on the nope as that as well. I think it's worth adding, you know, she wrote a 59 page opinion. She addressed many of these criticisms and we're not going to go into all of that right now, but I agree in part because if you're going to have this really narrow textual reading of the word sanitation, which I agree in part because if you're going to have this really narrow textual reading of the word sanitation, which I agree with you, you could have a broad reading of sanitation. She takes a narrow one. I think that's appropriate where it is clear from the statutory language that that is the word it hangs on. But as you sort of allude to here,

there's the first sentence, which just says they're authorized to make and enforce such regulations in his judgment are necessary. That's so broad. And then of course, in the second sentence with sanitation, there's the and other measures as in his judgment may be necessary. So you never get to, we need to like get down to the root definition of the word sanitation because of those other two to be. It comes into like, when is textualism appropriate? And some people are going to say always, great. But there's like different types of textualism. And here, if you narrow it on one word, say that it can't have more than one definition. Most words in the English language have more than one cognate definition, if you will, like, you know, related cousin definition like sanitation. And I just think it's odd to force such a narrow reading of sanitation given the surrounding language, which makes clear they don't want you to have a narrow reading of

any of these words. There are just some words we're throwing out there to give you an idea of what we mean. And in fact, if you read it that way, it would mean we want you to read sanitation in the broadest reasonable manner. You know, sanitation, I don't think can mean to make something dirty. For instance, that's not a cousin definition of sanitation. So if for some reason, the only way to prevent the communicable disease was for people to cover their face in mud, it would be hard to say that that's sanitation. Fair enough.

But to say like, well, a mask keeps something clean, but it doesn't clean it. Therefore, we have to pick one definition of sanitation or the other. That's where I'm like, well, but that's where other measures in his judgment, all this other language is informing you outside of the singular word. Textualism, in my view, is not plucking a word out of its context and forcing the narrow definition on that. So that's why I'm a nope on number one. But we're both yeps on the Administrative Procedure Act problem. Yeah. And this is what's fascinating to me, Sarah. So I've been, I've been flying, I've been flying for a while. I can't remember the first flight I took. You mean like in your life? How old were you when you first flew?

In the pandemic, in the pandemic. So I definitely flew, I definitely flew pre and it was the fall of 2020 when I started flying again. And so this was during pandemic pre vaccine and everyone was masked, masked in the airports, masked in the flights. And I if you had told me, David, when was a CDC rule enacted requiring masking in airlines and flights? I would have thought, oh, probably March 2020. Yeah, I would have said April 2020. Yeah. The answer is February 2021. Right, exactly, which is crazy.

Which is crazy. And so the question here was, why didn't you go through, because nobody can dispute, there was no notice and comment rulemaking. In other words, no rulemaking process under the Administrative Procedure Act. And the answer, essentially, that the Biden administration gave was, well, we got good cause, COVID. And that was basically the answer, good cause, COVID. And that was basically the answer, good cause, COVID. I mean, it was a one page or so of explanation. Which is also in and

of itself unusual. When most agencies do good cause exceptions, there's like a book they write about their good cause for exactly this reason. You not only want to paper over the decision like infinitely, but there's no harm in including every possible argument. It's good cause because it's a Wednesday and also it was raining and I have a cold. I mean, there's no downside to including more because if a judge can find anything you didn't include, they get to basically say you didn't think through everything. And that's the arbitrary and capricious side of this, which is a little separate, I know, but it's sort of how that would work. It's kind of a read the room, guys. Have you not been seeing what's been going on in APA

jurisprudence? I mean, think about DACA rescission. But it's also read the room, David. Even February 2021 at that point, the courts, including the Supreme Court, were giving wide latitude to the executive branch to do anything as long as they said COVID. And you and I covered this of pandemic law through the spring and summer of the pandemic. And we were like, look, pandemic law is going to be at its zenith as the pandemic starts. And people are trying to figure this out in the executive branch. They're not going to get their wrists slapped for doing too much or too little. Like they're trying their best. But as the fall comes, pandemic law is going to shrink as we know more, as you can have

more reasoned decision making. And so by February, they've now had six months of like pure pandemic law where like anything goes. You don't have to say anything like COVID is the shibboleth. And it's just starting at the Supreme Court really at that point to say like, okay, well, you've had some time now. Yeah. It was late 2020, early 2021, where pandemic law really began to fade. And you saw it, for example, in the religious liberty cases and the religious liberty cases. That's when the Supreme Court started saying, you know, we're not granting you the discretion to kind of prefer casinos as much, although they did grant them the discretion to prefer casinos during pandemic law time.

But we're not granting you the same level of discretion. And it was most visible in the religious liberty cases. And so, you know, in this circumstance, pandemic law is pretty much over. The pandemic has been going for 11 months. We knew a ton more about masking, about transmission, about transmission in aircraft than we knew 11 months previously. in aircraft than we knew 11 months previously. And this is where I think she's on very solid ground. I mean, is this good cause under the statute 11 months after the pandemic really got rolling to just throw a page at me and say, good cause, COVID, good cause. And this is my yep bucket. This is absolutely my yep bucket. She's correct here. There's also the over and under inclusiveness of the masks themselves. Now, in February 2021, we didn't have all of the studies on the efficacy of different types of masks, I will grant you.

But nevertheless, there's also some common sense. Why have surgeons been wearing surgical masks? Why do N95s exist? And why would you possibly think that something cut out of a Gap t-shirt is the equivalent of either of those two things? Now, I can understand, for instance, not distinguishing in the mask mandate between surgical masks and N95s. I don't think it is reasonable to assume we would know the efficacy difference between those two masks. But I think it is reasonable to think that wearing a piece of cotton over your face that after two seconds has all of your little moisture droppings on it probably is not the same. And the fact that we're in 2022, more than a year later, and that distinction still hasn't been made, I thought she made a pretty good case for the arbitrariness of the masks

themselves, the taking it off to drink. You can sip a Diet Coke for the whole flight. That is fine. But if you don't have a Diet Coke in front of you, you have to wear a mask. I have found that, I mean, so frustrating, again, especially as the mom of a toddler. Either we're trying to protect the unvaccinated toddlers, in which case it doesn't matter whether you are thirsty or more to the point, willing to waste a cup of Diet Coke by having it sit in front of you and fake drink from it. Or we're not worried about this at all. So there was both the, for me, the good cause part of skipping notice and comment, which again, if we're going to hold people to notice and comment in all these other contexts, do it here. They had plenty of time. 30 days is not much when we're talking February 2021. They knew for a long time that they were

contemplating a mask mandate. They just didn't do it. Second, the arbitrary and capriciousness where you're not considering which mass, which people, when can you take it off, which forms of transportation, it's not a particularly close call on bucket number two, as far as I'm concerned. Again, if this had been April, May, June of 2020, I would feel very differently about bucket two on both counts, on both the good cause count and the arbitrary and capricious count. But in February of 2021, no. Right. I mean, yeah. So to me, the APA part of this is so clearly, yep, it's almost slam dunk, hang on the rim, yep, at this point. And so February 2021, it's kind of funny and I kind of felt a little embarrassed that I didn't realize that, but I, the, that it wasn't until February,

2021, until it was a federal rule, because it had been the universal American practice. Also the airlines can have this policy. The airlines can have a policy of saying, if you fly on our private company's plane, then you need to wear a mask. What has happened is that you start with the airline policy, then the government policy overlaps with the airline policy. Then the airlines want to get rid of the policy, but the government policy is what keeps you wearing the mask. So that's why when this court order went out, the airlines were like, take off your masks. Right. Because the airline CEOs had petitioned the Biden administration to end this mask mandate. And they had put it in, you know, airlines had put them in for good reasons because it was protective to the very existence of their business for a while.

I mean, it was not it was not clear how this would spread in airplanes. It was not clear how dangerous would it be to travel. And so it absolutely behooved Southwest to say, we're going to make this as safe as possible based on available information for our customers. Although as Judge Mizell notes, by the way, that by the time we get to February 2021, we also know that airplanes have some of the best ventilation of anything in like that you could possibly be in, uh, compared to where there's not federal mask mandates, uh, in places of public accommodation that have no ventilation. And so why airplanes that again goes to the arbitrary and capricious standard.

All right. So make your yep case for bucket three. I'm sorry. I forgot one thing in bucket one that Ilya Soman said on the sanitation definition. So this goes to your point, David, that I just don't think you should be spending that much time defining sanitation. But your point, David, was well taken, which is, but if you're going to define sanitation, I don't know that you defined it correctly. know that you defined it correctly. So Professor Ilya Soman, the above analysis, referring to Judge Mizell's analysis, is very thorough, but I remain skeptical. The broader definition of sanitation strikes me as more intuitive and more in accordance with ordinary usage than the narrow one. Among other things, the narrow definition would lead to some counterintuitive results. For example, if the CDC enacted a regulation barring defecation on the floor of a plane or train, that would not qualify as sanitation under Judge Mizell's

approach because it does not clean anything, but merely keep something clean, in this case, the floor. Yet I think most ordinary people, both today and in 1944, would agree that a ban on defecating on the floor qualifies as sanitation policy. And we will call this the poo-poo rule to push back on that textual interpretation. So, sorry, David. So now we get to number three. And this is where you and I diverge. I'm very excited. This is the vacature injunction bucket.

Yes. No, David, explain yourself. Explain your wrongness. No, I challenged you first because- What? No. Look, okay. Mine is really pretty short. There are specific parties to this lawsuit and the district court should provide relief to those parties. And so the injunction, the reasoning for providing the relief is critically important and can be relied on by other plaintiffs, but the actual grant of relief applies to the parties. And the parties were seeking an injunction from the mask mandate, one of them because she said that she had a medical exemption because of anxiety, and grant her the injunction for the reasons related in the reasoning of the court's opinion. And then you know what? Guess who else gets to file a motion for an injunction on this? The airlines. Other parties can try to utilize this

reasoning. But the problem that I have here is all that we went through when we talked about Judge Sutton's magnificent two pages, which we need to relink in the show notes, that there is one district court judge that has issued a ruling that has now rippled across the entire United States of America, applying to all airlines, applying to Ubers, I believe, applying to airports. No, too much, too much power for a district court judge. And so provide relief to the parties, which gives a precedent, not a binding precedent, but a precedent that other parties, perhaps with much larger scope in reach in a potential ruling, such as, say, Southwest or American, or because all of these CEOs petitioned

the Biden administration to lift the mask mandate, let them go charging into court next. Seek a TRO. Go for it. But as far as can these couple of plaintiffs achieve relief that extends to me as much as I liked it. And again, I want to put this out there. I really liked flying without the mask. I had zero, I had zero resentment, zero, less than zero resentment about flying with a mask pre-vaccine and pre-therapeutics and all of this. Post-vaccine and therapeutics, the situation has changed. The mask mandate, I did not like the mask mandate. I was happy to take it off. This is a situation where my judicial philosophy conflicts with my policy preference, but grant the injunction to the parties, let others utilize the precedent. That's why I'm nope on bucket three.

Okay. You're wrong for at least three reasons. At least the three that I'm going to go over. At least three? Well, then you have to go for four. Otherwise, that, yeah, at least, so at least three. The people in the comments will come up with the rest of them. First of all, there's a very good argument, like a bulletproof argument, I think, that she was bound by 11th Circuit precedent in this. And even if she weren't, that's not going to actually be

my first reason why you're wrong. Even if she weren't, the Supreme Court has still not spoken to this issue. And so you don't want a world in which some judges don't issue nationwide injunctions and some judges do in the exact same circumstances. And I think you want universality in how this is done. And right now the Supreme Court has in fact upheld various nationwide injunctions without saying we think nationwide injunctions are the correct remedy. But nevertheless, as long as the Supreme Court is upholding nationwide injunctions, that is enough to say they haven't struck them down. Therefore, she can't be the one district judge who's like, look, every other district judge would issue a nationwide injunction, but not me.

I'm not going to do it. She can be. No, she can't. Okay, so that's the first reason that you're wrong, is the Supreme Court hasn't spoken to this yet. That's why Judge Sutton had a two-page concurrence. He didn't then just say, and therefore we're not doing nationwide injunctions. He said, Justice Gorsuch, I'm looking for you.

Okay, number two reason that you're wrong. Here I'll read from Judge Mizell's opinion. Awarding complete relief here requires vacature. The difficulty of distinguishing the named plaintiffs from millions of other travelers, both for government actors and the myriad of private companies, individuals, and local governments bound to enforce the mandate with best efforts, almost ensures the limited remedy would be no remedy at all. How is the ride-sharing driver, flight attendant, or bus driver to know someone is a plaintiff to this lawsuit

with permission to enter mask-free. The identification problem is further compounded for the geographically dispersed members of Health Freedom Defense Fund. So, you know, some of this goes to who needs to benefit from this remedy. And in this case, David, I think she's got a point. Are you supposed to carry a little signed order from the judge? Maybe. I think you would say probably yes, right? Yeah. Yeah. Okay. So that's the second reason that you're wrong. The third reason, well, wait, let me do a little to be there. Within that second reason that you're talking about plaintiffs. I knew it was more than three. So 2B counts as three. Okay. That unlike some other nationwide injunctions where it's on or off and the

judge is deciding both the floor and the ceiling, here you mentioned, for instance, that the airlines could bring their own lawsuit, but the airlines also could institute a mask mandate and individuals could still wear a mask. And, you know, there's that little chart that I found very helpful at various points in the pandemic about the distinction and protection between you wearing a mask and the person you're talking to, you know, you wearing an N95 mask, the person you're talking to wearing no mask, wearing a surgical mask, wearing an N95 mask. And so I understand that there is additional protection versus you alone choosing to wear a mask and everyone on the plane being forced to wear a mask. Nevertheless, you are still very

much allowed to wear a mask on the plane. And so here, I think Judge Mizell's injunction lowers the ceiling, if you will, the floor. Now I've messed up my own metaphor. But regardless, saying the airlines could bring their own suit, it's not like states where a judge's nationwide injunction now prohibits states from doing something or forces them to do something. Here, the airlines are free to do what they want. Okay. Third bucket, David. Well, they are free post-nationwide injunction, which I think is, so that kind of begs the question.

Post-nationwide injunction, which I think is illegitimate, but they would only be free to do what they want. In my world, which limits the power of a district court, if the airlines go in and seek that freedom. Well, yeah, but my point is- Which they probably do post-haste.

The airlines have the freedom to require or not require masks, which is all this mandate did in the first place. No, it didn't allow them to not require. Sorry, the question is whether when you get on an airplane, you will be required to wear a mask or not. Set aside the CDC rule. That's the question actually being faced. The airlines can make that decision now the same as the CDC was making the decision. True. We're probably just arguing around each other. Let me get to bucket number three. And I mentioned this around Judge Sutton, which is that the APA is different. So a nationwide injunction doesn't make as much sense outside of the APA context, because

where did that remedy come from other than just sort of the judge's head or that the plaintiffs couldn't get relief without a nationwide injunction? And I think Judge Sutton makes that case pretty powerfully in his two-page concurrence, where I think it falls apart a little, is in the APA context specifically, where that remedy is very much listed, the set-aside language. And so here, of course, this is an APA case. There is the set-aside language. There are good arguments that, in fact, a judge is required is required to quote set aside a regulation that they find violates the APA. Set aside meaning vacate it. Now David, there is some nerding out to be done in terms of the difference between a rule that says that it's as if this regulation never happened, as in you just take a little

strike through and put a line through it, versus the rule is still on the books, but the courts will not enforce it if you bring an action against someone for violating that rule. And this gets into some interesting legal theory and philosophy, but it applies to this nationwide injunction versus vacatur conversation. I actually very much subscribe to the, no, these laws are still on the books. And so for instance, maybe in the Roe v. Wade context, it's most interesting. If Roe gets struck down, you don't have to repass the laws that were on the books pre-Roe. They remain on the books regardless of Roe. And so when it comes to nationwide injunctions, I think that is the right theoretical framework.

There was no strikethrough. They weren't excised like a cancer from the body politic. They remain on the books. They are just not turned on, if you will. from the body politic. They remain on the books. They are just not turned on, if you will. So I'm going to agree with you that a nationwide injunction is absolutely not inconsistent with precedent. I mean, there's just no real credible way to say that a nationwide injunction at this point in time is inconsistent with precedent. I think that it's entirely consistent with, when I say consistent with precedent, that's not the same thing as saying mandated by precedent. In other words, there isn't precedent saying that she can't do this. And if you're really upset about this particular nationwide injunction, where you been? Because these have been all over the place for, I mean, we're coming

up on a decade or so of widespread nationwide injunction practice dating back to the Obama administration, running throughout the Trump administration, where, as you said, nationwide injunctions were granted by more progressive district court judges. Too much celebration back in the day. But I'm just going to end my little filibuster with Judge Sutton. If you don't like my arguments, Sarah, I'll just give you a little, just a dash of Sutton. The Administrative Procedure Act, it is true, says that a review in court may hold unlawful and set aside agency actions that violate the law. But that raises a question, Sarah. That's not in there. I added the Sarah. It does not answer it. The question is whether Congress meant to upset the bedrock practice of

case-by-case judgments with respect to the parties in each case or create a new and far-reaching power through this unremarkable language. We presume that statutes conform to long-standing remedial principles, and it is far from clear that Congress intended to make such a sweeping change. Use of the setting aside language does not seem to tell us one way or another whether to nullify a legal administrative action or not to enforce it in the case with the named litigants. Sarah, Judge Sutton. Judge Sutton, Sarah. Oh, David, I appreciate you reading Judge Sutton to me,

and I will answer with James Madison. Oh, no, no, no, you can't. You cannot go founding father on me. At the Constitutional Convention, James Madison described the power to set aside governmental actions as judicial veto power over whole laws. And you're asking whether when Congress passed the Administrative Procedures Act, they meant to disrupt longstanding common law tradition? Yeah. It's the Administrative Procedures Act. Where in the common law is notice

in common, arbitrary and capricious or an administrative state? No. Boom. Mic drop. All right, David. So for Monday, we've decided we're going to talk about an interesting oral argument about Miranda and two Supreme Court decisions that came out today. So Monday, we'll have some SCOTUS extravaganza going on. You don't want to miss that. But for the rest of this show, we still have some things to cover. Yeah. So let's do, this is pretty quick actually, because I want to get to the NYU issue and at least briefly mention this Uberber thing which is wild um but as as lots of if you if you spend even one nanosecond on on media over the last uh two three four days um you'll have seen that florida is taking action to essentially punish the walt disney corporation by removing some special status that the Disney corporation has over the real estate it possesses. And we don't need to go into all of the details as to what that special status means. There's a

bunch of special kind of districts throughout Florida. Disney is one of them. Disney is not the only one, but it's one of them. And so Florida has decided that Disney's too woke for its special status and is moving to revoke that special status. Now, what will that mean immediately? Unclear, unclear, because I'm going to bet that it's going to get challenged and challenged pretty quickly, Sarah. This would be a great case for Scott. This would be a fantastic Disney. I know you're listening. Get on the horn. Call Scott today on about this case. But the question, there's a really interesting question that a lot of people ask when we talk about the first amendment. And we've talked about this before and in and the question is this how can it

violate my rights if a state actor denies my access to something i never had a right to in the first place okay so did disney when it came to florida have a right to a special status, a special legal status? No. Do I, just David French walking around in this world, have a right to a government job? No. Do I have a right if I'm part of a government employer, do I have a right to a promotion? No. Do I have a right to a government contract? a right to a government contract? No. But does that mean that the government can deny my access to a contract or deny my access to employment or deny my access to a quote unquote special status for then any reason? No. So for example, we know this when it makes intuitive sense when it comes to things like race, you know, in the anti-discrimination context. I might not have a right to be a government contractor, but I do have a right to not be denied a government contract because of race. I might not have a right to a government

job, but I do have a right to not be denied that job or promotion because of race. Well, a very similar analysis applies to expression in many contexts. So I might not have a right to a government contract, but do I have a right to be denied that contract because I'm a Democrat if the mayor is a Republican? No. And this is a case called O'Hare Truck Service, Inc. v. City of Northlake. And this was a 7-2 decision from 1996. And the facts are really simple. O'Hare Truck was a towing company employed by the city. The city kept a list of available towing companies and would only remove a company after a showing of cause. In the case, however, Northlake, the city, removed O'Hare Truck Service

because O'Hare didn't support the mayor in his reelection campaign. Instead, he supported the opposition candidate. And so, boom, mayor wins, O'Hare's opposition candidate loses, O'Hare's knocked off the list. Lawsuit filed. 7-2 decision. O'Hare wins. That independent contractors, now of course Disney's not an independent contractor, but the reasoning here is quite applicable, are entitled to the same

First Amendment protections as afforded to, for example, a government employee. And so this retaliation against O'Hare because it's political affiliation was a violation of the First Amendment. to make any sort of case that the removal was justified, you'd have to show that the political affiliations had a reasonable and appreciable effect on job performance. So very simple case, but it's a great case to illustrate a principle, which is when the government is providing employment or dispensing contracts or benefits, there are profound limits on the extent to which it can reward or punish its political allies based on their political viewpoint. So I think we need to send that to Governor DeSantis. But Annie, your thoughts, Sarah? No, I think I don't have anything to add

to that. I thought that was a very good overview, actually. Why, thank you. Why, thank you. I mean, you were so wrong in the last segment that I sort of am inclined not to. You're just granting me some grace. I appreciate it. I am. Hey, David, can we do a quick mailbag? Oh, yeah, sure. Absolutely. So we've gotten a few questions from folks about how President Biden can sign the commission for Judge Kentucky Brown Jackson when Justice Breyer has not actually left the court yet in terms of like, why can't he just like get other people confirmed to the court just in case that someone else leaves? And in fact, there is an interesting OLC opinion on this signed April 6, 2022, that I thought was worth putting in the show notes and mentioning. The short version is that they believe that you can nominate and confirm someone and sign the commission as long as you're aware of a vacancy coming shortly. There's not a whole lot

of limiting principle to that, I suppose, or at least a black and white one. But it would not, for instance, include just having someone in the wings confirmed in case sotomayor falls down you know a well right right and a lot of people were concerned about that i just thought i'd put this in the show notes it's a it's a six page opinion um the completion of the appointment however does, does not mean that Judge Jackson assumes the office of associate justice. Rather, her entry on the duties of the office remain contingent on Justice Breyer's resignation becoming effective. Justice Breyer, as judicial officer with life tenure, cannot be displaced from his office by the president's appointment of a successor,

in contrast to other executive officers. Although Justice Breyer has submitted his resignation to the president, he, quote, remains in office until the conditions of his resignation occur. After his resignation becomes effective, then she takes the statutory and constitutional oaths of becoming a justice of the Supreme Court. Those, by the way, can also be administered separately. So you have the confirmation vote in the Senate, the president signing the commission, her taking the statutory oath, and then her taking the constitutional oath generally administered by the Chief Justice of the United States. That's what's coming down the pike on that, mailbag listeners. Nice. So should we, we're running out of time. Should we do Uber or NYU? I think Uber. Okay. So David, the law firm of Consovoy McCarthy run by Will Consovoy, who again, I have

to mention that I worked for back in the day. He is the smartest human I have ever known. Just full stop. That's it. It's Will Concevoy for anyone who's curious. He's also exceptionally kind and fun and all of these other fabulous qualities. But I just thought it would be worth mentioning to you, David. I've never met someone smarter than Will Concevoy. And his life story is a little bit incredible. He goes to Monmouth in New Jersey to study sports management, like assistant coaching the football team or basketball team. Sorry, Will, I'm getting this very wrong. And not a great student, to be clear, not the best student. And decides that's not for him through a series of events is like uh i think i should go to law school it doesn't get into a lot of law schools as you might imagine but gets into george mason this is

back you know before george mason became the antonin scalia school of law um so it's not a very well-known law school it's a state school state school in Virginia and doesn't even do very well his first year in law school and then has some epiphany that like he is the smartest person I've ever met. That judge basically calls Edith Jones. You'll notice that's also who I clerked for on the Fifth Circuit. Not a coincidence at all. Will's judge calls Edith Jones and is like, hey, this is the smartest clerk I've ever had in my whole life. And so Edith Jones takes a flyer on this George Mason law student. Edith Jones then, as far as I know, picks up the phone and calls a certain Supreme Court justice, CT, and is like, hey, this is the smartest clerk I've ever had. You got to take him. Andful discrimination against those ordering from other businesses. And they filed more than 31,000 individual demands for arbitration.

Uber, of course, is like, whoa, whoa, whoa. That's silly. These are all identical claims. We don't want to arbitrate them because we'd have to pay arbitration fees for each claim. No, we don't want to do that. And oh, by the way, an Uber requires arbitration. Oh, indeed they do. Yes. Uber requires arbitration. If you're an do. Yes, Uber requires arbitration if you're an Uber rider. And this has always been something

that companies use because they believe arbitration is to their advantage. Streamlined decision-making, basically unreviewable or essentially unreviewable or hard to review decisions out of arbitration.

So Uber had this arbitration clause because Uber wants arbitration. So Uber had this arbitration clause because Uber wants arbitration. Except if it's not going to be beneficial to them. Uber's deal with the American Arbitration Association, AAA, the company has to pay a $500 filing fee, a $1,400 standard case management fee and a $1,500 arbitrator fee for each matter. So they get some discounts maybe, but it was still, Uber was saying 75% of their 2020 operating revenue. And they were like, yeah, so we're not going to do that. That would be astronomical, according to Uber. And a New York appeals court said, too bad. Uber. And a New York appeals court said, too bad. You have to pay the AAA invoice of $11 million to deal with the Consavoy firm's claim. It could top $91 million in fees alone. Here's the quote

from the judge. While Uber is trying to avoid paying the arbitration fees associated with 31,000 nearly identical cases, it made the business decision to preclude class, collective, or representative claims in its arbitration agreement with consumers, and AAA's fees are directly attributable to those decisions. Womp, womp, womp. I'll be interesting what happens on appeal in this, obviously at the New York State Court, but let that be a warning to all these companies that have very, as you said, obviously, at the New York State Court. But let that be a warning to all these companies that have very, as you said, David, binding arbitration clauses. Anytime you're like, agree to terms to use that app, or really any company that you're interacting with,

you're agreeing to these binding arbitration agreements. And kudos to Concevoy and some of his allies out there for seeing a gap in the market on that one. Yeah. I have two things here. One was, I thought that exact sentence was so key. It made the business decision to preclude class collective or representative claims in its arbitration agreement. So it could have included collective claims so that this could be consolidated, but they chose not to. Again, we'll see what happens on appeal here. The other thing is, you know what this is another really good lesson about? What this is a really good lesson about is no matter what Twitter is telling you to do, no matter what angry employees are telling you to do, adopting massive, explicitly race-based policies

in an American civil rights law context is a really, really bad idea. And you might have been hailed across the length and breadth of Twitter for like, I don't know, six hours, seven hours or whatever until Twitter moved on to another company to demand another company do something on a completely race-based basis. But look, you know, if you're adopting explicitly race-based policies in the American civil rights environment, you are asking for trouble.

You are asking for trouble no matter how fashionable it might be online in that moment. David, I have a friend who's an in-house counsel at just a totally unrelated corporation, but she sent me a hilarious text where she's like, picturing the in-house conversation about this new product feature before Uber rolled it out. Lawyer one, technically, I think this might be illegal. Lawyer two, you can't say that. You might get fired. Non-lawyer executive, it may technically be illegal under racist, antiquated laws,

but our moral superiority will carry the day for us. Thank you. That was a play in three acts. Yep, exactly. You know, this is part of a longer, larger theme that we've talked about a lot, is that one of the things I think we're going to be learning as the law continues to develop in this area over the next two, three, four, five years is that prohibitions against race discrimination mean prohibitions against race discrimination. And that means race discrimination that you think is great and good and awesome and super justicy, that's included in the concept of

race discrimination along with race discrimination that is malign and malicious and intended to victimize people. And race discriminate prohibition prohibitions against race discrimination are going to mean what they say increasingly in American law. They already mostly do. They already mostly do. But they're going to increasingly mean what they say. So that's just my projection. There's a term I didn't use in describing this case. And I'm curious where you fall on this term. I did not use the term reverse discrimination. Yeah. Yeah. I don't like that term. Yeah. I don't like that term. Yeah. I don't like that term. I used to use the term because it was a very shorthand way of describing discrimination.

Usually as a way of describing discrimination against, say, white employees or white students or etc. students or etc but um the more proper term the more proper term if you're wanting to describe a context of intentional discrimination and against a marginalized individual might be invidious discrimination that might be a more proper term but reverse discrimination i think is a um is that how you would describe the Harvard case? So that's exactly what I was going to say. Reverse discrimination only exists in a black and white, and I guess I mean that kind of literally, world. But what happens when you're discriminating against Asian Americans?

Is that reverse discrimination under the model minority theory? Or is it invidious discrimination because they are literally a minority, a smaller minority than many other minority groups in this country? Anyway, I was just curious what you thought of the terminology. Yeah. No, I think, I think Harvard is invidious discrimination because not only is there, was there one of the, the evidence demonstrates that not only were they discriminating on the basis of race, they were discriminating in a way that specifically maligned Asian applicants. For their Asian-ness, by the way. For their Asian-ness. I mean, that's going to be textbook invidious discrimination.

That's going to leave a mark. All right, David, before we go, we have an exciting announcement for Monday's podcast. I already mentioned about the Supreme Court stuff we have to talk about, but we have a special guest coming on Monday per the request of so many of our member commenters. And that is Professor Steve Vladek of the University of Texas. You may know him from his New York Times guest essay, Roberts Has Lost Control of the Supreme Court, in which he says, The chief justice illustrated in joining the liberals against an emergency docket issue, how concerned about the procedural shortcuts the other conservative justices are taking do and should cross ideological divides. He also made clear what many have long suspected, the Roberts court is over. And he goes on to criticize the emergency docket, the shadow

docket, something David, you and I have pushed back on that criticism. And in particular, we're having Steve Lattice on because he is to the left of you and I, and we had requests for more left-leaning constitutional scholars because he wrote this essay that's really smart and that I don't totally agree with, and we should talk about it. And three, because someone asked me about this essay in the comments section of our podcast, and because it was late at night and because one cannot always live up to their own principles, I put in a somewhat flippant response that didn't really address any of his core arguments and instead said that I thought he had been on Twitter too much recently. And that was not living up to my own standards of how I like

discourse on interesting ideas to go, even the ones I disagree with. And so for all of those reasons, Steve Vladek's coming on Monday. Well, I'm looking forward to it. We'll just dissolve the tension early. We'll try to move past the tension early. How would you pronounce it? Reprochement? Quite so.

You'll be the mediator in that, David. I'm happy. I will say I already sent a similar sentiment to Professor Vladek in advance of this conversation. As a graduate or a participant in, what would be the right word for, I just took a class in? what would be the right word for I just took a class in? As someone who passed a class in the Harvard Project on Negotiation. Ooh, yeah. Yes, yes.

I will be happy to help mediate this conflict and am looking forward to bringing peace into this fractious world. Then Monday it is. Monday it is. Well, thank you everyone for listening. We'll be back Monday with a lot. So please don't forget to tune in. Also, please don't forget to rate us where you get your podcasts, subscribe where you get your podcasts and check out the dispatch.com. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame

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