Raymond J. de Souza: Lessons from Biden’s mask mandate failure
There is a difference between courts that act imperfectly and courts that are impotent. During the pandemic, Canada’s courts have not only been masked, they have been mute
NEW ORLEANS — The Biden administration’s mask mandate crash landed while I was airborne.
On Easter Monday, I headed off to preach at a retreat to a group of priests in the American south. A bit tired out from the activity of Holy Week, I settled in to sleep on the first leg of the trip, from Toronto to Chicago.
Carefully observing the injunction to wear seat belts “while seated” — is it even possible to wear seat belts otherwise? — “even when the seat belt sign is not illuminated,” I cinched my safety restraint in place and dozed off for 40 winks at 30,000 feet, confident that I would not be awakened by the aero-gendarmerie should the seat-belt light be switched on.
But then I was. As I am a sound sleeper, the flight attendant had a time of it, poking me to no effect and then gently agitating my shoulders. My eyes flickered open upon her invigilating gaze, and the admonishment was swift. While my seat belt was “securely fastened,” my mask was dangerously dangling.
Well, not really dangling. During my slumber, it had slipped down, exposing the front of my nose. It’s possible that my nostrils had somehow gained unimpeded access to the recycled air. Given that my own proboscis is not especially protruding, I imagine this happens to not a few passengers, but our flight attendant was equal to the supervisory task.
Her eyes made clear what her masked scowl could not: she was displeased. I immediately remedied the situation, wondering if she had been watching all along to see if my slippage had exceeded the recommended 15-minute maximum allowed for mask-free eating and drinking.
Suitably chastised, the mask was firmly in place the rest of the way, including on the connecting flight from Chicago to New Orleans, despite a most enjoyable conversation with an old friend who was coincidentally on the same flight. Little did we know that, while en route, a federal judge in Florida struck down the U.S. Centres for Disease Control’s (CDC) mask mandate. Within hours of landing, the airplane mask mandate was no longer being enforced by the federal government and the major airlines had dropped it.
All of which was rather shocking the day after Canada celebrated the 40th anniversary of the Charter of Rights and Freedoms. The celebration was rather muted, as the charter has spent the last two years in deep hibernation. It will take more than a gentle shake to get the somnolent charter back on the job.
Which is not to argue that the various pandemic restrictions were obviously unconstitutional; our charter explicitly makes rights subject to “reasonable limits” as can be “demonstrably justified.”
Yet we never discovered what those reasonable limits might be vis-a-vis public health orders, as they were never adequately justified in any court. On the very few occasions that plaintiffs were willing to petition the courts for charter protection, the courts took the view that a restriction on fundamental rights — freedom of association in your own home, religious freedom, mobility rights — was justified without demonstration, just by assertion by whichever government official had the microphone that day.
The American court ruling — which came into effect faster than Bonnie Henry could close a church or Doug Ford could close a school — was instructive precisely because it was not made on constitutional grounds. There have been constitutional cases, such as the U.S. Supreme Court ruling that it violated religious liberty to subject synagogues to harsher restrictions than entertainment facilities.
The federal court in Florida, however, ruled on whether the enabling statute in fact enabled the federal government to mandate masks on transport and, if it did, whether the government proceeded in the right way, with proper consultation — whether it was, one might say, demonstrably justified.
My layman’s constitutional view is that many of the pandemic restrictions of fundamental freedoms may have passed the “reasonable limits” test. But it was never really applied. No one ever had to justify anything; the mandate itself was considered demonstration enough. And, to be frank, it was not only the courts that were cut out of the action, it was the legislatures, as well.
The Florida court applied principles of administrative law to the mask mandate. Was it within the statutory authority of the CDC? Did the CDC exercise that authority responsibly and with restraint, or employ it in an arbitrary and expansive fashion? Once those questions starting being asked, it became evident that the mandate was not so much argued for as it was asserted.
America has its own judicial difficulties, to be sure. The judgment itself had little credibility with many because it was given by a judge who was appointed by former president Donald Trump when she was only 33 years of age, and confirmed by the Senate after Trump had lost the election. It doesn’t smell good.
But there is a difference between courts that act imperfectly and courts that are impotent. During the pandemic, Canada’s courts have not only been masked, they have been mute.
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