Dean's Notes

Is our return to the pre-pandemic world of 2019 ending? Some indicators point to an uptick in Colorado. Hospitalizations increased from 77 to 88 last week and case numbers and percent positivity are trending upwards, as are wastewater concentrations of SARS-CoV-2 in some regions of Colorado. These trends likely reflect the more infectious BA.2 variant that accounts for the majority of the current infections in Colorado. The most recent modeling report, released on Friday, projects a modest surge in Colorado with COVID-19 hospitalizations caused by BA.2 rising to several hundred. The report also provides longer-run scenarios showing how critical characteristics of the next variant—infectiousness and immune escape—will affect the course of future surges. Projections for several of the hypothetical variants lead to peaks of hospitalization that exceed 1,000. If a variant were to emerge that caused a soaring epidemic curve, a return to non-pharmaceutical interventions would likely be needed along with an aggressive vaccination campaign and perhaps re-engineered vaccines.  

Last week’s decision by U.S. District Judge Kathryn Kimball Mizelle concerning the federal mask mandate for transportation threatens the CDC’s authority to call for needed control measures. The Monday announcement was followed by immediate responses from the airlines and others. My wife was in-flight from Boston when the pilot announced the decision and that United was no longer requiring masks from that moment forward. Passengers applauded and many took off their masks.  

What was the basis of Judge Mizelle’s 59-page opinion? The plaintiffs claim that the mask mandate was not lawful and violated the Administrative Procedure Act (APA). There are four counts in the plaintiffs’ Amended Complaint. I focus on Count I: the Mandate exceeds the CDC’s statutory authority. The judge’s opinion related to this count takes up more than 20 pages and hinges largely on interpretation of the Public Health Services Act of 1944 and particularly 42 U.S.C. § 264(a). Here is the most critical language:
 
Much of Judge Mizelle’s opinion on the first count hinges on her interpretation of the second sentence, and whether use of masks can be related to any of the actions listed in that sentence. Her interpretation is based in part on her review of dictionary definitions of the time. Put that approach in context. In 1944, tuberculosis was still considered as a fomite-transmitted infection, and Wells was carrying out pioneering work on airborne infection. Mizelle also turns to “corpus linguistics,” a previously unfamiliar term for me. Her approach using corpus linguistics involved searching the Corpus of Historical American English with a finding that sanitation was used at the time in reference to making things clean. The judge also finds that the actions in subsection (a) refer to things and not to people, and that the Mask Mandate imposes on liberty. The Mask Mandate also becomes a form of detention because there is conditional release for travel only with use of a mask. A further consideration raised by Mizelle is whether Congress intended for the CDC to enter into the arena of public health measures that are the purview of states.  

The other counts relate to procedural matters and the Administrative Procedure Act and I will not explore them here. Judge Mizelle ends with: “The court DECLARES UNLAWFUL and VACATES the Mask Mandate, remanding it to the CDC for further proceedings consistent with this order.” The decision is troubling in many respects, particularly with regard to its broader implications for taking public health actions in the face of a national threat. For that reason, I consider the Administration’s appeal to be necessary. The judge’s ruminations about the intent of the 1944 Public Health Service Act and the interpretation of such words as “sanitation” at the time seem misdirected. Understanding of disease has advanced and new disease control measures, not anticipated in 1944, are widely used, including respiratory protection. Stating the obvious—the Public Health Services Act was not written with a future global pandemic of a highly infectious and virulent virus in mind. In fact, the CDC was not in existence in 1944; it was founded in 1946. Under the Code of Federal Regulations, the CDC does have the authority to act if actions by states are inadequate for disease control.   

Take a look at the plaintiffs, which include two individuals and the Health Freedom Defense Fund. Its webpage features a photo of happy, unmasked airplane passengers. It lists a number of lawsuits against mask and vaccine mandates. It is opaque as to its funding, but contributions are welcome. The page for its president and founder features an interview with Dr. Thomas Cowan. He surrendered his medical license in California and promulgated the crackpot idea that 5G radiofrequency electromagnetic radiation is causing the COVID-19 pandemic. But the complaint made by the Health Freedom Defense Fund and the two other complainants found a sympathetic judge. The result is frightening. For the opinion of real experts, see the commentary today in the New York Times from Lawrence Gostin of Georgetown University and civil rights lawyer, Duncan Hosie. 

I remain troubled by Russia’s nuclear saber rattling, which included the testing of a new missile last week. Putin proclaimed that the new missile should make Russia’s enemies stop and think. For some jazz nuclear commentary, listen to “Oh Lord Don’t Let Them Drop That Atomic Bomb on Me,” first recorded by bassist Charles Mingus in 1962. If you find the album, then listen to “Eat That Chicken.”  

Enjoy 2019, while it lasts.



Jonathan Samet, MD, MS
Dean, Colorado School of Public Health