The faulty grammar behind a Florida judge’s reckless mask ruling

Last week, when U.S. District Judge Kathryn Kimball Mizelle threw out the CDC’s mask mandate for the whole country, she employed a litany of dictionary definitions but ignored pleas for good grammar. Taking one without the other doesn’t make for good language or legal reasoning — to say nothing of good public health.

The back-and-forth between the government, which was defending the mask mandate, and the plaintiffs — a brand-new, Orwellian-sounding nonprofit called the Health Freedom Defense Fund, along with two Florida women who claimed that wearing masks gave them anxiety — could make a layperson’s head spin.

The argument goes like this: A 1944 law empowers the government to enact certain regulations to keep disease from spreading: “For purposes of carrying out and enforcing such regulations, the Surgeon General 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.”

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The word sanitation, which is what masks help do, is key. The plaintiffs, who wanted to get rid of the mask mandate, claimed that “of animals or articles found to be so infected or contaminated” applied to each noun that preceded it, including sanitation. In other words, according to the plaintiffs, unless a person is already “infected or contaminated” — that is, COVID positive — the CDC has no authority to enact sanitation measures: i.e., forcing them to wear a mask. That led Mizelle to conclude that, in mandating masks, the CDC was out of bounds.

The problem with this reading, as the government points out, is that for it to make grammatical sense, the word or would have to appear before destruction. If someone were to be “infected or contaminated,” then sure, the government could go to town inspecting, fumigating, disinfecting, and sanitizing them. (This week’s news that the youngest detainee at Guantánamo was cleared for release is a good reminder of how much our government likes inspecting and fumigating people.)

But that conjunction isn’t there. Without that tiny or, every word from destruction to human beings is part of one isolated noun phrase that functions the same as the nouns that precede it: inspection, fumigation, and so on. Because sanitation doesn’t rely on “infected or contaminated” for its meaning, sanitation itself should be a legitimate function of the CDC — which would mean that mandating masks is well within the agency’s purview.

Nowhere in Mizelle’s 59-page ruling does she engage with the government’s grammatical argument. (As this column explored a few weeks ago, Florida, where the judge hails from, doesn’t often care much for grammar.) Instead she undertakes a dictionary treasure hunt to find the original meaning of sanitation. Credit for creativity: Because the statute was enacted during World War II, she looks for sanitation definitions in contemporary dictionaries: a 1942 Webster’s New International Dictionary, a 1951 Simplified Medical Dictionary for Lawyers, and a 1946 Funk & Wagnalls — the most badass of the dictionary kingpins. This historical context is important, even if it ignores the fact that definitions can change over the course of eight decades.

But by going all in on dictionary definitions — which are arguably outdated, given that we’ve learned a few things about science and sanitation since the Roosevelt administration — Mizelle ignores the faulty grammar behind the plaintiffs’ argument. By imagining conjunctions that aren’t there, she shows a callous disregard for language, and a willingness to cherry-pick narrow arguments that justify her predetermined conclusions.

No mask can cover that kind of judicial recklessness. And now, apparently, it won’t.

The Grammarian, otherwise known as Jeffrey Barg, looks at how language, grammar, and punctuation shape our world, and appears biweekly. Send comments, questions, and null determiners to jeff@theangrygrammarian.com.

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