From [HERE] The Association of American Physicians and Surgeons (AAPS) filed its amicus brief with the U.S. Court of Appeals for the 11th Circuit on Friday against the Biden Administration’s mask mandate on airplanes and other public transportation. The court is hearing Biden’s appeal from the April federal district court decision that invalidated his mask mandate.

“Mask mandates are tyrannical, and Congress never authorized the CDC to require travelers to wear masks,” stated Andrew Schlafly, General Counsel of AAPS. “Mask mandates infringe on two fundamental rights: freedom of speech and freedom of travel,” he argued in AAPS’s amicus brief.

The Biden Administration did not attempt to reinstate its mask mandate for travelers after it was blocked by a federal judge, amid widespread public opposition to the mandate. But Biden appealed to the 11th Circuit to seek authority to reinstate the mask mandate at any time, Mr. Schlafly explains.

Neither the government nor the parties filing briefs supporting it demonstrate effectiveness to Biden’s mask mandate, Mr. Schlafly argued in the brief. He cited multiple recent articles admitting to the ineffectiveness of mask mandates in different regions of our country.

According to their court brief;

Mask mandates infringe on two fundamental rights: freedom of speech and freedom of travel. The ability to see another’s demeanor while he is speaking is often as important as the content of what he says. Historically many American states and towns prohibited the wearing of masks, in order to avoid the harm they cause. See, e.g., N.Y. Penal Law § 240.35(4) (predecessor enacted in 1845, then reenacted in 1965, and then repealed amid Covid-19 in 2020). Determinations of credibility essential to courtroom trials are just as important in everyday life, as millions of decisions are made daily, based on not merely what one says, but on how he is perceived as saying it.

Whether and how government may impose a mask mandate on travelers is a substantial issue involving a major question, and the recent adoption by the Supreme Court of “major questions doctrine” requires affirming the decision below. On June 30, 2022, after Appellants filed their opening brief, the Supreme Court issued its ruling in the consolidated case of West Virginia v. EPA, 142 S. Ct. 2587 (2022), and expressly embraced major questions doctrine for the first time. It requires invalidating agency decision-making on major questions in the absence of express congressional authorization. Such is the case here.

Mask mandates are more politics than science, and politics is to be sorted out in the halls of Congress rather than at a politically unaccountable administrative agency. Congress uses a time-proven process that includes public hearings, feedback by constituents, vigorous public debate, and political accountability. All of these elements are essential before a burden as draconian as a traveler mask mandate is imposed, and yet none of this exists for agency decision-making by the CDC. The Constitution protects against government controlling what people say, and likewise protects against government controlling how people look when they say it. What is said with a slight smile can often mean something entirely different from what is said with clenched teeth. The CDC incorrectly insists that it should have immense unchecked power to decide what to allow on this, without any express congressional authorization.

As further explained by Justice Neil Gorsuch in his concurrence in West Virginia v. EPA, “major questions doctrine” is not new. Courts have rejected many prior agency attempts to grab breathtaking authority never authorized by Congress, as the CDC attempts here. Nothing in the relevant statute or its prior implementations remotely support the mandate that all travelers wear masks, let alone require ineffective mask-wearing. As a “major question” this is one for Congress to decide as part of the political process, not for agency employees to impose without hearings and meaningful public debate.

The amicus brief submitted by the AMA fails to cite or address a single legal authority. The amicus brief submitted by the Public Health amici cites only four legal precedents other than the decision below, one of which is a 1925 Georgia Supreme Court decision concerning the meaning of the word “sanitation”, along with numerous citations to various dictionaries. All the amici in support of the government fail to address major questions doctrine and the long line of Supreme Court precedents that led to its formal adoption in West Virginia v. EPA.

Just as glaring is the failure by the government’s amici to provide any justification for the travelers’ mask mandate. Mask mandates failed to work during the 1918 flu pandemic, and yet the briefs submitted by the government’s amici cite their unsuccessful use then as a reason to mandate them again. The medical briefs could have cast some scientific light on the matter at hand, but there is no science in support of requiring intermittent use of porous masks by travelers. In the briefing by the government amici, only one paragraph in each of their briefs even alludes to any general scientific support for a travelers’ mask mandate, and those allusions do not survive scrutiny.

Finally, with respect to the nationwide relief, it is necessary because travel is not an isolated activity. People travel with friends and family, and it would be senseless to hold that merely one within such a group is free of an unauthorized mandate, while the others within the group must still comply with what is unauthorized. The nationwide scope of the relief below was proper. [MORE]