Mask’s Off to Our New Lawmakers!

It may have been the closest approximation we Americans will have to the pure gush of elation over the Berlin Wall crumbling. Or when Osama bin Laden got his well-deserved lead comeuppance courtesy of perdition-escort Rob O’Neill.

District Judge Kathryn Kimball Mizelle’s invalidation of the federal mask mandate on public transit was met, if judging by surreptitious online video (and who doesn’t trust that?), with jubilation. Like two Rascal-bound womanatees fighting over a half-price 50″ flat screen on Black Friday, iPhones aplenty captured the raw human emotion.

”Ladies and gentlemen, this is your pilot speaking. This is the most important announcement I’ve ever made. The federal mask mandate is over. Take off your mask if you choose!” announced one relieved Alaska Airlines pilot. Applause immediately followed. A similar announcement was met with whoops on a Delta flight. A video of a stewardude warbling, with a melismatic flourish, an imploration to 🎵throw away your masks🎵 has been viewed over a million times.

The joyful doffing of jaw bridles may have made the evening’s cable news broadcasts—but they weren’t met uncritically.

Tocqueville said Americans enjoy arguing over conversing (And just where does a Frenchman get off saying that about us yanks? Huh? Who saved whom in WWdeux again?). But we also enjoy raining on our countrymen’s parade—see: woke-afied race theory. So because nothing can be enjoyed in Uncle Sam land without a huffy reminder it came at the cost of an endangered amoeba or an anthropophagous indigenous tribe, tut-tutting maskiphiles just had to make their displeasure known.

The whinging started, as always, with the bobble-head class. Numerous anchors, commentators, pundits, moderators, and mic’ed up windbags used the same, cookie cutter language to denounce free maws. “A MAGA judge,” a “Trump-appointed judge,” a judge “who was appointed by none other than Donald Trump,” struck down the mask mandate, making a “legal ruling, not a scientific ruling,” “a legal decision, not a public health decision,” and a “legal decision, not a medical decision,” that is really a “political decision,” a “political statement,” and part of a “political agenda.”

Oh, to be a copy boy for prestige-press personalities. Feeding banal newspeak into a shared Slack chat that is repurposed and broadcast nationwide—what a way to make a living! Hey, Editor, I found my real calling. I could write “Trump-related” and “MAGA-influenced treason” all day. Sayonara. Send my severance check to [Redacted].

Just kidding, faithful reader. I’d have to sell out for far more than a CNN+ contributorship.

Naturally, the judge behind the mandate-busting presides over the Middle District of Florida, home of infamous hell-raising “Florida Man,” a cryptoNazi governor, and loads and loads of homo-hating hillbillies—all of which gives ample grissle to the event-rage churn machines.

The narrative assembled smoother than a perfect Tetris match: the entire ruling was an anti-science assault, led by gap-toothed everglades gatoress with J.D., on careful-minded citizens still trying to save their thrice-mRNA-injected grannie. Airplanes have now been rendered pathogen-conveying tin tubes of terror. Or as one shrieking Slate writer put it, “Try explaining to your friends in other liberal democracies that a single unelected, life-tenured, 35-year-old judge just abolished the air travel mask mandate for the entire country.”

Joke’s on, Marky. I don’t have friends in other liberal democracies (Canada doesn’t count because of princeling P.M. Trudeau’s brief Lucius Fox impression). So I have nothing to explain to anyone beyond our borders.

Except of course the judicialization of American representative democracy. Binning a federal mask mandate on executive-exceeds-power grounds might pass constitutional muster. It all depends on what the definition of sanitation is, and whether airborne pathogens were imagined by the constructors of a broad sweeping sanitary WWII-era law before Tamiflu was a thing. (Do Mizelle critics now endorse mainlining bleach like our last chloroquine-popping president?)

Legal whiz Andrew McCarthy thinks an executive mask requirement on public portage is authorized by Congress, but the regulation is still invalid because it didn’t go through the proper 30-day public-polling period. That disregard for public sentiment is, in the main, the real problem.

So while, like most Americans, I was over COVID a year ago, and through with jockstrapping my mandible, the ruling isn’t exactly a welcome herald. The extra-democratic mandate striking shows the real sausage-making process of American lawmaking, which has shifted from Congress to the courts. Elected representatives still pass two-feet-tall paper bricks called “bills,” but the verbiage within is now always conditional. The real law imprimatur rests with the courts, with judicial supremacy enforced by nine legal clerics.

Matthew Walther convincingly wrote that the 17th Amendment effectively abolished the Senate qua Senate, as George Washington described it in his crockery metaphor. With our federal legislative upper chamber just a directly elected mirror of the lower, there is no once-removed body to temper democracy’s emotive reaction. Except, that is, those marble, colonnaded structures in “Law & Order”’s groovy open sequence.

As if Congress weren’t a toxic waste pit enough, with performative outrage, prattling nincompoops, more outrage, more gibbering short-gimbus riders, and endless fundraising emails to maintain the mad-shouting-mad cycle. But the only job our congresssimians are paid to do—govern the damn country—has been punted to another Constitution article, a total abdication of responsibility.

The left understands this more than the right, which is now populated with self-styled “fighters,” who believe verbally shadowboxing before C-SPAN cameras is being a statesman. “I can’t stress enough how much easier it is to find some judge who you think you can get to declare X unconstitutional than it is to get 218 House votes and 60 Senate votes to create X,” tweeted Washington Post reporter and honorary Chapo Trap chud Dave Weigel. CNN legal analyst Jeffery Toobin, whose expertise resides mainly in Megan’s Law breakage, summed up the dynamic: “The decision by the young Trump-appointed federal judge ending the mask mandate in travel shows the federal judiciary has turned into the Senate.”

Toobin, erm, finishes by noting that “Democratic and Republican judges live in different worlds and rule differently,” as if that’s some keen political insight and hasn’t been true since the republic’s birth. But the basic premise remains: law-writing has been passed off to the bench. That also goes for perennial conservative critique about executive rule-making outside congressional remit, what Barack Obama called his “pen and a phone.” Congress suits would rather beg the courts to stop the imperator in the Oval than actually force their interns to write a one-page bill saying, “The President has no authority to do this, that, and the other thing.”

Sham votes are held instead on bills never destined to pass, but are used to “send a message,” which is poli-fundraise speak for raise money. The dumbest part about the whole judge-forces-everyone-to-drink-each-other’s-spittle saga is that it was all nearly avoidable. Congress did hold a vote to nix the fed mask directive. A handful of red-state Democrats even voted for it. But it failed to vault the 60-vote filibuster threshold, which saved Nancy Pelosi’s bacon in not forcing a faceoff between her moderate and socialistically strident members.

Because heaven forbid our elected representatives make hard decisions about how to govern 300-plus million people! Their soft brains might melt over having to actually stand for something. Quelle horreur!

Our democratic representative process is drifting from the demo root. Judges aren’t technically unaccountable—some are elected, most others are subject to legislative confirmation and potential impeachment. A judicial accountability process exists. But, like the president, gavel-wielders have been happy to assume the lawmaking authority forfeited by lawmakers, issuing acquis communautaire-like rulings.

Anything to shirk responsibility in our callow age. “Civilization advances by extending the number of important operations which we can perform without thinking about them,” said mathematician Alfred North Whitehead. American legislators have taken his word to heart, offshoring their jobs to less scrutinized parties.

Besides, why bother thinking when half-priced appetizers start at 4:00 PM at The Capital Grille? Let the sucker judge in the Eastern District of Wisconsin handle the brainwork.

Mmmm… medium-rare malversation with a side of whipped cowardice. *Gaped-mouth salivating.*

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Taylor Lewis

Taylor Lewis writes from Virginia.

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