Steven Lubet: Judge’s decision to scrap mask mandate rests on her tortured misreading of one word. - NBCNewsTHINK
to mandate masks on public transportation, despite the statute’s grant of authority to the federal government to “prevent the introduction, transmission, or spread of communicable diseases” by measures including “sanitation.”
Treating the two cherry-picked definitions as though they are mutually exclusive, Mizelle then performed a series of linguistic gymnastics to reach the conclusion that only the first one — “active cleaning” — was encompassed by the statute. Because “wearing a mask cleans nothing” but at most “traps virus droplets,” the mandate turned out to be beyond the CDC’s statutory remit.
Even worse, Mizelle simply ignored more expansive dictionary definitions from the same time period as the law’s enactment. The 1949, for example, has only one definition of sanitation: “Use of scientific sanitary measures to prevent disease.” Similarly, the 1937 Oxford English Dictionary defines sanitation as “the devising and application of means for the improvement of sanitary conditions.” Webster’s 1936has words to the same effect, defining sanitation as “the use of sanitary measures.
Many Latinate “-tion” words — formed by turning a verb into a noun — are likewise comprehensive. Consider a statutory authorization for “medication” in a hospital, which can mean both thethemselves. It would be nonsensical to apply it only to the pills while excluding the doctors and nurses who distribute them to patients. “Separation” can refer to the state of separateness as well as the act of separating.
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