On The Further Weaponization of the APA and Chevron Deference (4/19/22)

In Health Freedom Defense Fund, Inc. v. Biden, 2022 U.S. Dist. LEXIS 71206 (M.D. Fla. 4/18/22), CL here, the Court (Judge Kathryn Kimball Mizelle, Wikipedia here) invalidated a Centers for Disease Control regulation requiring travelers to wear masks in transportation hubs.  The opinion refers to this as the “Mask Mandate,” an apt description, so I will use it.  The Court applied a straightforward APA analysis (whether it did so correctly is another question).  That analysis proceeds as follows: 

First, the Court determines that the rigorous interpretation of the relevant statutory text, now in vogue at Chevron’s Step One, indicates that the “best interpretation” of the governing statute is that CDC does not have the power it purported to exercise. 

Second, the Court (pp. 25-26) rejects the argument that the agency interpretation could trump the court's best interpretation of the statute.  The Court explains:  “Chevron deference requires that courts defer to an agency interpretation of a statute that the agency administers when the statute is ambiguous and the interpretation is reasonable.”  But, based on its textual interpretation, the Court found no ambiguity necessary for agency interpretive space, thus rejecting the application of Chevron.   

As an alternative, the Court invokes (pp. 26-31) the major questions doctrine, which requires that Congress speak clearly as to the agency’s authority on systemically important issues, and it had not done so.  

Third, the Court (pp. 31- ) holds that the regulation violated the APA's notice and comment requirement for two reasons:  (i) it failed to qualify for the APA's interpretive rule exception to the notice and comment requirement, without explaining why the regulation was not an interpretive regulation; (ii) apparently treating the regulation as a legislative regulation without analysis, the “good cause” requirement for immediate effectiveness (applicable only to legislative regulations) was not adequate; (iii) failure to undergo notice and comment (not required for interpretive regulations) before effectiveness was not harmless error; and (iv) the Mask Mandate is arbitrary and capricious because the CDC’s explanation was insufficient. Finally, the Court did not reach (p. 31-58) the plaintiff’s “non-delegation” claim, which says that Congress cannot delegate legislative power unless the “legislative authority” delegated is bounded by an intelligible principle limiting the scope of the delegation.  (This point assumes that the regulation was not interpretive, for interpretive delegations under APA constructs are not delegated authority to make law.  I’ll discuss that more below.)

Whew, I thought I was reading a screed from the Federalist Society.

I post this case on the Federal Tax Procedure Blog because, inspired by the Federalist Society and fellow travelers among some spectrum of scholars and judges, the APA is a hot topic in tax cases, which has prompted numerous offerings on the FTP Blog.  I focus on the opinion’s assumption that the regulation in issue is a legislative regulation.  The Government seemed to assume that as well in its reply on motion for summary judgment.  (Dkt. 54, pp. 32-33, discussing nondelegation, a concept that applies to legislative regulations.)  It is that assumption that I will deal with in a separate blog because  I hope to show the term “legislative regulation” means something different for APA purposes than for deference purposes.  I will post that new blog by tomorrow.

Those interested in seeing the important filings in the case may access the docket sheet free on Courtlistener, here.