Alarming is a word that one might reasonably use to describe Dr. Anthony Fauci’s response to the striking down, by a federal judge, of the Biden administration’s mask mandate for passengers and staff of public transportation systems. Chilling is another good descriptor. The good doctor opined on April 21 that the government’s public health officials, rather than judges, should be making the decisions about such things. The dangerous implications of what Fauci suggested can hardly be understated. If federal government bureaucrats could overrule legal opinions in the name of “public health,” the expansion of government power and control would truly be unlimited. The encouraging news, however, is that Fauci’s dream of tyranny for the common good, now revealed, can be resisted.
After the administration’s – or perhaps one could say the CDC’s – mask mandate for travelers was nixed by US District Court Judge Kathryn Kimball Mizelle on April 18, Fauci was queried about his thoughts during an appearance on a CBS News streaming show, Red & Blue. The White House adviser’s response was indicative of either a fundamental misunderstanding of Mizelle’s ruling or a deeply disturbing belief that legal standards and definitions should not apply to those who direct public policy:
“Well, I clearly disagree [with the legal decision]. I mean those types of things should be decided as a public health issue by the public health organizations, in this case the CDC. This is a public health matter, not a judicial matter.
“So, obviously the CDC will abide by the order of the court because it’s a legal obligation. But one of the problems that we have there is that the principle of a court overruling a public health judgment by a qualified organization like the CDC is disturbing in the precedent it might send.”
On April 24, the White House offered a somewhat lukewarm, though clear, correction to Fauci’s opinion: “Obviously, the judiciary has an important role to play,” said White House COVID Coordinator Ashish Jha. “What you heard out of the administration, out of the Department of Justice, is the assessment that this is an incorrect decision, and the DOJ is now appealing this decision.”
Fauci is a highly educated man – though there is arguably little direct correlation between intelligence and the ability to gain academic qualifications. Nevertheless, it is safe and reasonable to assume that this renowned epidemiologist is not, well, stupid. The response to which he gave voice, though, was, it must be said, either incredibly naïve or derived from authoritarian thinking. Mizelle did not base her decision on any medical knowledge or experience, nor did she pretend to. She did not take into consideration whether masks provide effective protection against COVID-19. Her ruling was based upon examination of language contained in the Public Health Services Act of 1944 and what authority that law granted the CDC. The judge also cited legal requirements for creating regulations, as outlined in the Administrative Procedure Act.
As reported by Fox News, Mizelle “determined that the mandate violated the Administrative Procedure Act by being outside the scope of the CDC’s authority, was ‘arbitrary’ and ‘capricious’ and not going through the required notice and comment period for federal rulemaking.”
Who Needs Judges? We Have Experts
It was, therefore, an entirely legal decision, not based upon any judgment of health or medical considerations. Yet, Fauci doubled down on his bizarre response during a later interview with Fox’s Neil Cavuto. “The point that I was making [was] that this is a public health decision,” Fauci explained, “and I think it’s a bad precedent when decisions about public health issues are made by people, be they judges or what have you, that don’t have experience or expertise in public health.”
Be they judges or what have you. That’s a frighteningly dismissive statement about the nation’s system of jurisprudence. More importantly, should the ATF overrule judges who issue opinions against gun restrictions – on the grounds that the latter are not qualified to make decisions concerning firearms? Should the EPA ignore legal rulings related to industry and energy production? Should the FCC be able to disregard an instruction from a court designed to protect free speech?
In the Federalist Papers (Federalist 47, 1788), James Madison wrote, “The accumulation of all powers, Legislative, Executive, and Judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” Almost 200 years later, the novelist C.S. Lewis wrote:
“Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive. It may be better to live under robber barons than under omnipotent moral busybodies. The robber baron’s cruelty may sometimes sleep, his cupidity may at some point be satiated: but those who torment us for our own good will torment us without end, for they do so with the approval of their own conscience.”
Fauci, it would seem, believes that, for the sake of the common good, government-appointed “experts” rather than jurists – or what have you – should be the arbiters of what constitutes morality, ethics, correctness, and public safety. Never mind what some judge has to say about the scope of a government agency’s authority – or about individual rights or liberties, for that matter; they aren’t academically qualified to make such decisions. No, only the “experts” can be trusted to make the laws by which we live. While we’re at it, why not do away with courts and judges and legal processes altogether?
Perhaps, instead of laws, courtrooms, and a Constitution, all disputes over right and wrong, good and bad, fairness and injustice, should be settled by panels made up of an appropriate selection of government bureaucrats – experts in the field. How is it possible this wouldn’t make America a far better country in which to live?
And, yes, that final paragraph is entirely sarcastic.
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