On Wednesday, the Texas attorney general’s office announced that Attorney General Ken Paxton, alongside the Texas Public Policy Foundation (TPPF) on behalf of Congresswoman Beth Van Duyne, has sued the Biden administration for its "illegal mask mandate for airlines and airports."
The office wrote in a press release that the mandate issued by the Centers for Disease Control and Prevention was "unlawfully issued," because it was not authorized by Congress, and the CDC did not put the mandate up for notice and comment, which the office said would be the normal protocol for required for regulations like this.
"Biden’s repeated disregard of the individual liberties of Texans is not only disrespectful to the U.S. Constitution, it is also troublesome that any president thinks they can act above the law while hardworking Americans standby," said Attorney General Paxton.
"President Biden cannot continue governing through executive edicts. Now is the time to strike down his administration’s air-travel mask mandate. I’m proud to stand alongside my friend Congresswoman Van Duyne and her counsel at TPPF to protect Texans’ liberty and the rule of law."
On January 29, 2021, the CDC issued an order requiring people on public transportation to wear masks in order to prevent the spread of the virus. The requirement covers transportation and transportation hubs like airplanes and airports, trains and train stations, ferries, buses, and ride-shares, as well as the people that work in these locations.
The lawsuit, filed on Wednesday, lists CDC Director Rochelle Walensky, CDC Chief of Staff Sherri Berger, and Department of Health and Human Services Secretary Xavier Becerra as defendants.
The complaint points out that "The State, through the executive orders of its Governor, has determined that Texans can choose for themselves whether to wear masks and that Texas businesses cannot be required by State or local governmental entities to impose masking requirements."
"Defendants’ Mask Mandate encroaches on the authority of the State within its jurisdiction, even as to purely intrastate travel," it adds.
The lawsuit lists two counts, the first being: "Agency Action Not In Accordance With Law And In Excess Of Authority (Violation of the Administrative Procedure Act," and the second: "Agency Action Violates The Nondelegation Doctrine (Violation of US Const. Art. I, § 1)."
The first count states that the mask mandate is in "excess of" the authority that it purports to follow "in several ways."
"None of these statutes or regulations authorize the CDC to make or enforce regulations that amount to a blanket preventative measure against people that may or may not carry infectious disease. Such a broad reading of the statute would be 'tantamount to creating a general federal police power,'" the lawsuit states.
"Additionally, Sections 264 and 70.2 require the CDC to act only once it 'determines that the measures taken by health authorities of any State . . . are insufficient to prevent the spread of any of the communicable diseases from such State . . . to any other State.' 42 C.F.R. § 70.2. The CDC made no sufficient findings on this point," it adds.
The first count also takes into consideration that the CDC "does not take into account the limiting language found in the subsection [ 42 U.S.C. § 264(a)]."
The section states that the CDC has the authority to make and enforce regulations necessary to fight the spread of communicable diseases, but "this grant of authority is cabined by the language found in the next sentence: '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 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.' 42 U.S.C. § 264(a)."
The second count states: "Article I, Section I of the U.S. Constitutions says, '[a]ll legislative powers herein granted shall be vested in a Congress of the United States.' In addition to the Mask Mandate exceeding the authority granted to the CDC under 42 U.S.C. § 264 and the relevant regulations, it also constitutes an unconstitutional delegation of legislative power to the CDC."
It goes on to state that "In order to comply with the nondelegation doctrine, a statute must: (1) delineate a general policy; (2) the agency to apply it; and (3) the boundaries of the delegated authority."
The lawsuit states: "it is appropriate and proper that a declaratory judgment be issued by this Court, declaring that the Mask Mandate is beyond the CDC’s statutory authority or is unconstitutional."
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