By Stefan Th. Gries, Michael Kranzlein, Nathan Schneider, Brian Slocum, and Kevin Tobia
In Health Freedom Defense Fund, Inc. v. Biden, the United States District Court for the Middle District of Florida ruled that the U.S. Centers for Disease Control and Prevention’s transit mask order, which was issued to stem the spread of SARS-CoV-2, exceeds the agency’s statutory authority, and struck down the mandate through a nation-wide injunction.
The district court’s reasoning exemplifies modern textualism. It focuses on the text of the 1944 Public Health Services Act (PHSA), which the Biden Administration claims authorizes the CDC’s transit mask order. The court relied heavily on the statute’s “ordinary meaning” and especially one word: “sanitation.”
Does the evidence support the court’s linguistic conclusions? Our team — of linguists, social scientists, philosophers of language, and lawyers — took a second look. We conclude that the district court’s approach fails on its own textualist terms. It gives the impression of selective reading of the linguistic record, rather than the careful investigation of meaning that textualism claims to champion.
Linguistically speaking, there are three reasons to reject the court’s analysis.
The court’s first linguistic mistake concerns the relationship between two key sentences that it quotes from PHSA, § 264(a):
The [CDC], with the approval of the [Secretary of Health and Human Services], is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession. 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.
The court interprets the actions listed in the second sentence (“inspection, fumigation,” etc.) as limiting the scope of agency authority as described in the first sentence. The court cites the reasoning provided in Ala. Ass’n of Realtors, 141, S. Ct. 2485 (2021) (per curiam):
The “second sentence ‘informs the grant of authority by illustrating the kinds of measures that could be necessary: inspection, fumigation….’ In other words, ‘the second sentence narrows the scope of the first.’ [quoting the 6th Cir., 2021] Thus, if §264(a) authorizes the Mask Mandate, the power to do so must be found in one of the actions enumerated in the second sentence.
However, this ignores the second sentence’s reference to the first. Sentence two describes activities that the CDC may undertake for the purpose of enforcing “such regulations,” regulations authorized by sentence one. In linguistic terminology, this use of “such regulations” is called “anaphora,” the use of a word to refer to an earlier one. Sentence two does not narrow the scope of the regulations—rather, it describes what the CDC can do (e.g., inspect, disinfect) in enforcing the regulations authorized by sentence one.
But even if we grant the court’s re-writing of the statute (which follows the Supreme Court’s interpretation in Ala. Ass’n of Realtors), with sentence two narrowing the authorization of regulations, the court’s analysis fails for two more reasons.
First, it implausibly analyzes the meaning of “sanitation.” Looking to dictionaries and data from a corpus of historical American English, the court claims that there are two relevant senses of “sanitation”:
First, sanitation may refer to measures that clean something or that remove filth, such as trash collection, washing with soap, incineration, or plumbing. See Webster’s New Int’l Dictionary 2214 (William Allan Neilson et al. eds., 2d ed. 1942) (defining “sanitation” to include “rendering sanitary”); Funk & Wagnalls, New Standard Dictionary 2172 (Isaac K. Funk et al. eds., 1946) (defining “sanitation” as “the removal or neutralization of elements injurious to health”).
Second, sanitation may refer to measures that keep something clean. See Funk & Wagnalls, supra at 2172 (the “devising and applying of measures for preserving and promoting public health”) ….
However, the court’s sense distinction is spurious. The Funk & Wagnalls’s New Standard Dictionary defines “sanitation” as “[d]evising and applying of measures for preserving and promoting public health, removal or neutralization of elements injurious to health, practical application of sanitary science.” As evidence of its first sense, the court extracts only one clause of this definition, and zooms in on just one word in that clause: “removal.”
The court argues that this sense (sanitation as the active removal of presently dirty conditions) is more commonly used. The court cites corpus linguistic evidence:
The Court here searched the Corpus of Historical American English (COHA) to find uses of “sanitation” between 1930 and 1944. … [T]he most frequent usage of sanitation fit the primary sense described above: a positive act to make a thing or place clean. Common examples referred to sanitation in the context of garbage disposal, sewage and plumbing, or direct cleaning of a dirty or contaminated object. In contrast, by far the least common usage—hovering around 5% of the data set—was of sanitation as a measure to maintain a status of cleanliness, or as a barrier to keep something clean.
In COHA, between 1930 and 1944, there are two-hundred and fifty-three instances of the term “sanitation.” Eighty-six refer to departments of sanitation or entities associated with such departments, and thirty-two refer to sanitation boards, commissions, committees, or divisions. Sanitation departments and sanitation boards’ work is not limited to “actively” cleaning something that is currently dirty. Many state and local sanitation departments offer services that maintain public cleanliness (e.g., trash and recycling collection; hazardous waste drop-offs) and services that are preventive in nature, such as litter and graffiti “prevention.” Thus, the court’s conclusion about the corpus data could not be verified: minimally, the identification of senses of “sanitation” is much more difficult than the court would have us believe; maximally, the court’s classification of the senses of “sanitation” is flat out wrong.
Beyond this issue (about “sanitation”), there is one other problem. The court concludes that “other measures” would not include mask-wearing, which is different from “fumigation,” “disinfection,” and the other enumerated items. But there are good reasons to support the opposite conclusion. Consider “disinfection” and “fumigation.” A common meaning of “fumigation” is to disinfect an area of space. Mask-wearing on a bus or an airport terminal (an indoor ventilated space) is a measure to disinfect an area of space (decrease the quantity of pathogens in the space).
Fixing even one of these errors would be sufficient to reverse the court’s interpretive conclusion concerning the meaning of the statute at issue — a matter of increasing urgency as U.S. officials warn of an impending “summer wave.” Mask wearing, which improves the air quality of enclosed indoor spaces, is a proven, effective measure to combat COVID-19, which already has killed over one million Americans.
But the stakes are not limited to the 2021 mask mandate. At the end of this month, the 11th Circuit will hear the case’s appeal. If the 11th Circuit — or Supreme Court — narrowly interprets the PHSA, that holding could broadly affect the future of the U.S. government’s pandemic response abilities.
This article summarizes “Unmasking Textualism: Linguistic Misunderstanding in the Transit Mask Order Case and Beyond,” forthcoming in the Columbia Law Review Forum (2022).
Stefan Th. Gries is a Professor of Linguistics, University of California Santa Barbara and Chair of English Corpus Linguistics at Justus Liebig University Giessen.
Michael Kranzlein is a Ph.D. Student in Computer Science, Georgetown University.
Nathan Schneider is an Assistant Professor of Linguistics and Computer Science, Georgetown University.
Brian Slocum is a Distinguished Professor of Law, University of the Pacific.
Kevin Tobia is an Associate Professor of Law, Georgetown University.
