No More Mask Mandate: A Win for Constitutional Governance
A Win Against Arbitrary Governance. A Win for Judicial Review.
In February 2021 the Centers for Disease Control (CDC) imposed a “Mask Mandate” requiring travelers on planes, trains and Uber vehicles to wear masks. Yesterday a federal judge ruled in Health Freedom Defense Fund et al. v. Joseph R. Biden, Jr. that the CDC had improperly circumvented standard “rulemaking” processes in order to impose the mandate. The judge further ruled that the CDC did not maintain the authority to impose its Mask Mandate in first place. The airlines promptly gave up on requiring passengers to wear masks. One can easily find video of passengers and flight attendants cheering the results and tossing their masks in the garbage.
There are a number of nice commentaries that have come out over the last day. The ever-engaging Jeffrey Tucker, for example, has posted one over at the Brownstone Institute, https://brownstone.org/articles/the-unmasking-of-america/. My point here is simply to illuminate the fact that this matter constitutes an example of judicial oversight over an administrative agency. That may not sound like news, but “judicial oversight” involves fundamental questions of constitutional governance: How do we impose any kind of oversight and accountability on unelected officials and self-avowed experts in the administrative agencies? How do we keep the Administrative State from becoming overbearing? Can we keep the Administrative State from becoming overbearing? Ultimately, who guards the self-anointed guardians? Quis custodiet ipsos custodes?
The Administrative Procedures Act of 1946 ostensibly sets up oversight mechanisms. These mechanisms include requirements that administrative agencies provide “notice” of prospective rule-making processes as well as processes for soliciting and engaging public comment. Other statutes will go some way toward delineating any one agency’s authority to propose rules in the first place. In the Mask Mandate matter, for example, the judge ruled that the CDC asserted authority beyond the purview of the Public Health Services Act of 1944.
One can imagine that determining what constitutes a given agency’s authority can make for a fraught affair. But, judicial review does provide a means of securing judgments about what matters do or do not fall under a given agency’s authority. It may have taken most of a year, but plaintiffs challenged the CDC’s assertion of authority to impose mask mandates. A court agreed with the plaintiffs. The government must now decide whether or not to appeal the matter.
It turns out that not all government authority is invested in purely administrative agencies. In my business, the antitrust business, the government is subject to much more direct judicial oversight. If the government wants to block a merger or challenge business practices on the basis of (anti)competitiveness, it has to take the initiative and make its case in court. Facing the discipline of court-ordered process is just part of a day’s work. There is little to zero scope for rulemaking processes, although there are questions floating around about how the antitrust enterprise in the United States might yet be invested with rulemaking authority. Would that be a good idea?
Rulemaking processes invest agencies with capacity to exercise initiative. They can launch rulemaking processes. It then becomes incumbent on outside parties to respond. In contrast, the antitrust enterprise is less well situated to launch processes. Rather, it has to respond to processes launched by private parties. There is a lot less scope for antitrust agencies to make mischief.
In The Administrative Process (1938) James Landis makes the case for investing government agencies with initiative. He is very clear about this. Government should be placed in the hands of the expert class, and the experts should be insulated from both political and judicial oversight. The executive branch (the president) should not be able to remove officials. Those same officials should not be required to expend time and energy justifying their rules to non-expert judges.
The Federal Trade Commission (FTC) was set up in 1914 so that it might exercise initiative in the monitoring and regulation of commercial activities. Its purview would include antitrust activity. William Howard Taft seemed to anticipate that the FTC was being setup so that it might avoid the discipline of court-ordered processes and might make mischief. Indeed, Taft proceeded to extol the virtues of court-ordered process in The Anti-trust Act and the Supreme Court (1914). The Act, he averred, had
dealt with a most difficult subject. The members of Congress who passed it knew that it was a difficult subject. The made plain the object that they had in mind, and they used general expressions to accomplish it, which they thought had had definition in the existing law. The evil to be remedied [monopolization] was manifest, and they pursued the legislative course, so often pursued before, of trusting to the learned, just, and equitable contraction of the courts effect their legislative intention. (Taft 1914, p. 6)
The “evil to be remedied,” it turns out, was more elaborate than “monopolization” alone would have suggested:
The first half of the nineteenth century, ending in the Civil War, resulted in a great moral elevation of the people in the struggle over slavery and its final excision. Afterward we settled down to a tremendous material expansion, in which all the people had their attention focused on the extended applications of invested capital to further development. It was a period in which the political duties of the people were negligently exercised and in which the influence of wealth over politics became greater and greater, until plutocracy threatened; ... (Taft 1914, pp. 34-35)
The emergence of plutocracy was the stuff of the “Gilded Age,” a label we get from The Gilded Age: A Tale of Today (1873) by Samuel Clemens (Mark Twain) and Charles Dudley Warner. But, might Taft’s vignette not sound familiar to some observers of current affairs? Have not some observers suggested that the political duties of the people have been negligently exercised and that the business of, say, “tech oligarchs” is plutocracy? “History does not repeat itself,” goes a particular aphorism attributed to that same Twain. “But it rhymes.” Some observers might suggest that we hear familiar refrains.
Taft seems to suggest that difficult matters might not be amenable to rule-by-expert. Instead, he seemed to contemplate the idea that wisdom about how to deal with difficult matters could be built up over time in the caselaw process. Mistakes might be made, but mistakes could be remedied. Court-ordered process could tailor judgments specific to each case.
The antitrust enterprise would seem to be well suited to judicial oversight. What would absorbing it in rulemaking, administrative process make of it? Would transforming the antitrust business into an administrative process merely amount to subjecting private enterprise to administrative control? Would administrators become situated to manage exit and entry from given markets? Would markets basically become populated by government-sanctioned cartels?
One way to think of these questions is that transforming the antitrust enterprise from a court-ordered process to administrative process would amount to transforming it into “industrial policy”. It would amount to making private enterprises the agents of government policy. Models for this kind of thing would include administrative governance in South Korea (post-1961) and in postwar Japan. One could even imagine taking the logic of administration to its extreme and to simply allow the government absorb all private enterprises. Enterprises would thus become “state-owned enterprises”. We end up with the Soviet model. So, if we think there is a role for private enterprise in the economy, then perhaps we should not subject all private initiative to administrative process and should decide what government activity should be subject to the discipline of court-ordered process and judicial review.