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05/08/2022

Stefan Gries et al.: Linguistic Misunderstanding in the Transit Mask Order Case and Beyond
Michael Ramsey

Stefan Th. Gries (University of California, Santa Barbara Department of Linguistics); Michael Kranzlein (Ph.D. candidate, Georgetown University Department of Computer Science); Nathan Schneider (Georgetown University, Linguistics and Computer Science); Brian G. Slocum (University of the Pacific - McGeorge School of Law) & Kevin Tobia (Georgetown University Law Center; Georgetown University Department of Philosophy) have posted Unmasking Textualism: Linguistic Misunderstanding in the Transit Mask Order Case and Beyond (19 pages) on SSRN.  Here is the abstract:

COVID-19 has killed nearly one-million Americans, and its massive impact on society is still unfolding. The government’s strategy to combat the disease included an order regulating the wearing of masks on transit. Recently, a federal district court entered a nation-wide injunction against the government’s transit mask order, ruling that the order exceeds the statutory authority of the Centers for Disease Control and Prevention. The district court relied heavily on the statute’s “ordinary meaning” and especially one word: “sanitation.” Drawing on common textualist interpretive sources, including dictionaries and data from corpora, the judge concluded that a transit mask order is not a “sanitation” measure within the statute’s meaning. This essay confronts this textualist ruling on its own terms. It argues that linguistic principles and data support the opposite conclusion about “sanitation” and the statute’s meaning: The text authorizes a public-health promoting mask order. This essay’s linguistic analysis carries immediate implications for the case’s appeal. The analysis also has broader implications for the future of the U.S. government’s pandemic response abilities and for judges committed to “ordinary meaning.”

Via Larry Solum at Legal Theory Blog, who has extensive interesting comments.

RELATED: At The Hill, Steven Lubet (Northwestern) has a similar critique of the decision: Was mask mandate judge a hypocrite?  From the core of the analysis:

Let’s begin with “original meaning,” which is supposedly the essential conservative method of construing statutory and constitutional texts. That task should have been straightforward for [Judge] Mizelle [in he mask mandate case], given that the 1944 U.S. Public Health Services Act confers authority to “prevent the introduction, transmission, or spread of communicable diseases” by means of “sanitation” and “other measures . . . that may be necessary.” In the public health realm, “sanitation” has had a broad meaning since at least the 19th century, which makes sense given the goal of protecting people from disease.

...

In fact, Mizelle strategically skipped even likelier, more comprehensive definitions from the very sources she cited. The full definition in the 1942 Webster’s Dictionary is “a rendering sanitary; science of sanitary conditions; use of sanitary measures,” with no restriction to cleaning. The definitions in the 1948 Funk & Wagnall’s Dictionary include “the practical application of sanitary science,” without excluding “measures to keep something clean.” Mizelle did not acknowledge either of these definitions in her opinion, although both would plainly cover masking. Given the brevity of the entries, there was no way for her to miss the inclusive definitions. The omissions must have been deliberate.

So I count five linguistics experts plus Professor Lubet who think think the original meaning of the statutory language is clear.  I note this because some people keep saying that originalism doesn't yield definite results in contested cases.