United States law recognizes that judicial review pertains to the judiciary’s power to review the constitutionality of a statute or treaty, or to review an administrative regulation as to whether it is consistent with the law of the land, be it in the context of a statute, a treaty, or the Constitution itself.
by Dr. Ruwantissa Abeyratne in Montreal
“Twice and thrice over, as they say, good is it to repeat and review what is good.” —Plato (c. 427–347 B.C.)
CNBC has reported that since the beginning of 2021, the FAA has received more than 3,200 reports of unruly behavior by passengers. Roughly 75% of the cases stem from passengers who refuse to comply with federal mask mandates. Interestingly, there seems to be no global harmonization on the subject of a mandatory requirement for passengers to wear masks on board aircraft.
The International Civil Aviation Organization (ICAO) in its Doc 10152 (Testing and Cross-border Risk Management Measures Manual) says inter alia the layered defense measures against COVID-19 include physical distancing in airports and during boarding; use of face coverings or masks; and separation between passengers on board when feasible. The ICAO guidance also says that consistency with the State’s national COVID-19 response policy and strategy is important, for example, medical masks may be recommended in aviation, but their availability should be prioritized for health workers and the public health response. In considering restrictions on aviation, the State should consider the role that aviation plays in the State economy and the public health response itself (such as the distribution of personal protective equipment (PPE), test kits, medicines, and vaccines). States should ensure alignment between the various public policies and measures applied across government.
The document also encourages risk assessment and risk management and recommends several measures; one of which is that travelers use a face covering/face mask (with exceptions as appropriate).
On 6 April 2022 the Secretary General of ICAO sent a State Letter to all ICAO member States which inter alia called for continued collaboration in applying a risk and evidence-based approach during the COVID-19 pandemic transition period. This communication had its main focus on masking, vaccination, and testing, requesting States to call for continued application of general public health risk mitigation measures during air transport, including hygiene and sanitation practices, recommending the wearing of masks, applying physical distancing where feasible and ensuring adequate ventilation. It also gave various benefits of mask wearing by passengers on board.
ICAO also recognized that in the aviation sector, some States have transitioned from government regulations to individual responsibility, while others have modified or removed one or more layers of the multi-layer risk mitigation measures, such as removing the requirement of wearing masks and phasing out of COVID-19 testing for some categories of individuals or adjusting the requirements for quarantine or self-isolation.
The Judgment
Against this backdrop The Centers for Disease Control and Prevention (CDC) in the United States extended the mask mandate that was due to expire on April 18, 2022, pushing the mandate a further 15 days to May 3, 2022. On 18 April 2022, US District Judge Kathryn Kimbal Mizelle - a federal judge in Florida ruled that the mandate so enforced by President Biden is unlawful as it did not comport with administrative law. Judge Kimball was presiding in a lawsuit filed by the Health Freedom Defense Fund, and two individuals against the Biden administration in July 2021 claiming that the masks on their faces increased stress and panic in them.
Judge Mizelle, decrying the practicality and effectiveness of a mask ruled that the mandate did not have legislative credibility as "the CDC required mask wearing as a measure to keep something clean -- explaining that it limits the spread of COVID-19 through prevention, but never contending that it actively destroys or removes it," thus equating the mandatory requirement to quarantine and detention.
The gravamen of judicial justification for Judge Mizelle’s reasoning was that “"the administration violated the Administrative Procedure Act, which dictates the procedures the federal government must follow when implementing certain agency policies… The Biden administration erred in failing to seek public notice and comment on the policy”. Furthermore, added Judge Mizelle, the mandate violates prohibitions on "arbitrary" and "capricious" agency actions since the CDC had not adequately explained its reasoning for implementing the policy.
Needless to say, the contentious and arguably ambiguous ruling of Judge Mizelle caused both confusion and panic in the aviation comunity. Helen Coffey, writing in The Independent of 19 April 2022 said: “plane passengers in the US reported that some pilots announced the country’s federal mask mandate had been dropped mid-flight. Announcements have allegedly taken place on Delta, United and Alaska Airlines services today, after a federal judge in Florida voided the mask mandate. Some travellers expressed anger that pilots would allow the mask rules to be scrapped while passengers were still airborne, unable to decide whether they were comfortable to go ahead with their flight or not based on the change”.
Following the ruling, the Association of Flight Attendants urged "calm and consistency in the airports and on planes." Some airports immediately took down from their terminals notices requiring mandatory masking.
Judicial Review
This confusion brings to bear the important issue of Judicial review of the administrative action of the mask mandate..
Linda S. Hohnholz, writing for Eturbonews.com on 19 April 2022 Stated: “Or is the end going to be appealed? US President Joe Biden’s administration said today that it would appeal Federal US District Judge Kathryn Kimball Mizelle’s ruling that ends the mask mandate on airplanes. But only if public health officials deem that it is necessary to keep the mask mandate intact. For now. We think…Even President Biden doesn’t really know how to respond to questions about masks anymore. When posed with the question of whether travelers should wear masks on airplanes, his response was “it’s up to them.” But Mr. President, doesn’t your administration’s official guidance say we Americans should keep wearing masks on airplanes for now?”
It was a recognized common law principle in the 19th Century that if the Executive (public authority) were to act administratively, such act or decision could not be subject to review by the judiciary. It is only if the public authority acted judicially that such action could be subject to judicial review. Furthermore, a prerogative enjoyed by a minister or president granted absolute discretion on the minister. However, in the 20th Century, the “unfettered” discretion granted to the public authority was considered valid only if such exercise of discretion comported with public interest. That is, if such action or decision did not impinge on or in any way infringed the principles of natural justice or violate citizens’ rights.
In other words, what matters is not whether a person acted administratively or judicially but whether he acted fairly.
In the 1968 case of Padfield v. Minister of Agriculture some farmers in the South-East of England requested the Minister to appoint a committee to investigate the price differentials in the milk industry and the Minister refused claiming he had “unfettered discretion” whether to appoint a committee or not. Furthermore, it was claimed on behalf of the Minister that his decision was administrative and not judicial. On appeal, The House of Lords in England held: “It is said that the decision of the Minister is administrative. But that does not mean that he can do as he likes. Nor does it mean that the courts are powerless to correct him. Good administration requires that complaints should be investigated and that grievances should be remedied. When Parliament has set up machinery for that very purpose, it is not for the Minister to brush it on to the side. He should not refuse to have a complaint investigated”.
In the 1972 case of Employment Secretary v. ASLEF Lord Denning said of the typical words used in a prerogative: “if it appears to the Secretary of State? This in my opinion does not mean that the Minister’s decision is put beyond challenge. The scope available to the challenger depends very much on the subject matter with which the minister is dealing”.
In the 1977 case of Laker Airways v. Department of Trade where the Secretary of State exercised his discretion and withdrew the designation of Skytrain (Sir Freddie Laker had spent 6 -7 million pounds on establishing Skytrain). The court held: “seeing that the prerogative is a discretionary power to be exercised for the public good, it follows that its exercise can be examined by the courts just as any other discretionary power which is vested in the executive”.
United States law recognizes that judicial review pertains to the judiciary’s power to review the constitutionality of a statute or treaty, or to review an administrative regulation as to whether it is consistent with the law of the land, be it in the context of a statute, a treaty, or the Constitution itself.
Judicial review is not explicitly addressed in the U.S. Constitution, and therefore there exists only an inference to that effect. The United States Constitution does not explicitly establish the power of judicial review. Rather, the power of judicial review has been inferred from the profile, structure and content of the Constitution. Of significant relevance is the 1803 landmark Supreme Court case of Marbury v. Madison , where the Court ruled that the federal courts have the duty to review the constitutionality of acts of Congress and to declare them void when they are contrary to the Constitution. This case paved the way for the Supreme Court to exercise judicial review on administrative acts.
In the end it should not be a legal wrangle between the interpretation of terminology such as “administrative” and “judicial” and “the duty to act fairly”. Courts everywhere should be able to balance citizens rights with public health when determining the effect of administrative mandates on the public and heed what the World Health Organization which recommends : “Masks are a key measure to reduce transmission and save lives. Wearing well-fitted masks should be used as part of a comprehensive ‘Do it all!’ approach including maintaining physical distancing, avoiding crowded, closed and close-contact settings, ensuring good ventilation of indoor spaces, cleaning hands regularly, and covering sneezes and coughs with a tissue of bent elbow.
Depending on the type, masks can be used for either protection of healthy persons or to prevent onward transmission, or both”.
Dr. Abeyratne is the author of Air Transport and Pandemic Law (2021) and Post Pandemic Facilitation of Air Transport (2022). He teaches aviation law and policy at McGill University and is former Senior Legal Officer at ICAO.
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