Unmasking Maskaholism: Why All Mask Mandates, Including the One for Public Transit, Need To Go (Part II)

Since the beginning of this pandemic, the face mask has been a highly contentious public health measure. Last week, I began my analysis on my mask mandates need to be a relic of the past. The first part of this two-part series covered the science of the face masks. After using randomized control trials (RCT) available and meta-analyses of RCTs, I concluded that face masks had very little, if any, effect on the transmission of COVID-19. Even if the face masks were an effective public health tool, it would not matter because we have reached a point where the pandemic is becoming endemic. Based on various epidemiological metrics and trends, we are no longer in a state of public health emergency that would merit such a mandate. Today, I cover two more facets of the face mask mandate debate. The first is whether the CDC had the legal authority to implement a public transit face mask mandate in the first place (Section III). Second, I cover the social and emotional costs, as well as the moral implications of face masks (Section IV).  

Section III: The Legal Argument Against Public Transit Face Masks

The question that Judge Mizelle was ultimately answering was not a public health question, but a legal question. Did the CDC have the legal authority to mandate masks on public transit? From where was the CDC claiming it had such power? It is not the Department of Justice. It is not President Biden. Per Article I of the Constitution, the CDC's statutory authority comes from Congress. What authority is the Biden administration citing? The Public Health Service Act of 1944, or more specifically, 42 USC §264(a). The statute permits the Surgeon General to "make and enforce such regulations as in [its] judgement are necessary to prevent the introduction, transmission, or spread of communicable diseases." These measures include "inspection, fumigation, disinfection, sanitation, pest extermination, destruction of other animals or articles found so to be infected or contaminated as to be sources of dangerous infection to human beings, and other measures." 

The thing is that during the CDC eviction moratorium case (Alabama Association of Relators et al. v. Department of Health and Human Services), the Supreme Court ruled that the CDC did not have the statutory authority to order landlords to house tenants who could not pay rent. The Biden administration tried using the same Public Health Service Act of 1944 in this case because it believed it had the authority to implement whatever measures necessary to stop the spread of COVID-19. Part of the majority ruling pertained to the phrase "other measures" phrase from 42 USC §264(a). The Supreme Court ruled that the CDC's powers were not that broad, stating that such a broad interpretation would "indeed give the CDC a breathtaking amount of authority. It would be hard to see what measures this interpretation would place outside of the CDC's reach." The ruling also points out that this statute has been rarely and narrowly implemented, either historically having used it to quarantine sick individuals or to prohibit the transmission or sale of animals known to carry disease (e.g., turtles carrying salmonella). 

So we already have legal precedence from the U.S. Supreme Court that 42 USC §264(a) does not give the CDC a carte blanche to do whatever it wants. Justice Mizelle made that argument in her ruling last week, yet some people take issue with that. NPR cherry-picked some legal experts to say "not even a graduate student in law school would be that careless," while chiding Mizelle for her interpretation of the word "sanitation" in the statute. Based on statutory context and common usage, Justice Mizelle opted for a narrower interpretation of "sanitation," that being measures aimed at cleaning something, which face masks do not do. NPR focused on Georgia State University professor Erin Fuse Brown. Professor Fuse Brown argued that "sanitation was just the old way in public health parlance of taking traditional public health steps to prevent the spread of disease." If "sanitation" were really a generic, catch-all term referring to any public health measure, why would the statute need another sentence to list other measures such as fumigation or pest extermination? Wouldn't those be part of public health measures to slow the spread? Because as the majority of the Supreme Court ruling on eviction moratoriums already pointed out, the list in 42 USC §264(a) is a list of specific examples. An argument of canon against surplusage, which is a longstanding rule of legal interpretation against redundancy in laws, thereby gives Mizelle's argument of interpreting the term "sanitation" narrowly more credence. 

Ultimately, Mizelle cited five reasons as the basis of interpreting the law narrowly: context of nearby words, contemporaneous usage, sweeping implications of the government's argument, history of the provision's application, and the fact it seems to be "limited to property." Additionally, she ruled that the CDC violated the Administrative Procedure Act [APA] by not allowing for the notice-and-commenting process. This is even less acceptable to bypass this democratic process as we are in our third year of the pandemic. Mizelle also made the argument that the mask mandate was too "arbitrary and capricious." The 11th Circuit Court does not need to accept every single one of Mizelle's arguments as ironclad in order to agree with her. One would suffice. Given that the a) Supreme Court already set a precedence in the previous case over the CDC's eviction moratorium and b) the Biden administration signaled a lack of public health emergency by not seeking a stay on the ruling, it would not be unreasonable to assume that Mizelle's ruling would ultimately be upheld if the appeals process goes all the way to the Supreme Court.  

But what is irritating the Biden administration and the maskaholics is they are not getting their way. The CDC cannot do whatever it wants in the name of public health. The executive branch overstepped its statutory authority, much like it did with the CDC's eviction moratorium and OSHA's vaccine mandate. The CDC had two years to ask the Democratic-majority Congress for statutory authority. If the CDC wanted to implement a federal mask mandate on public transit, it would have approached Congress by now and Congress would have enacted it. Whether the Biden administration and Fauci like it or not, that is how judicial independence and rule of law, which are two vital components of a democratic society, work. 

  

A Quick Word About Probability of Dying From COVID

The media, politicians, and the rest of the maskaholics did a fine job spreading fear throughout the pandemic (e.g., Sacerdote et al., 2020). Instead of discussing best practices, cost-benefit analyses, or "following the science," the default was panic. What are maskaholics panicking about at this stage? Dying? What are the odds of dying from COVID? Back in September, I brought up how a vaccinated person under 65 would be more likely to die from a bee sting (which has odds of 1 in 59,507) than from COVID, which at the time was 1 in 137,698. The odds might be even lower still. A study from researchers at the National Institutes of Health (NIH) tracked 1,228,664 vaccinated adults in America from December 2020 to October 2021 (Yek et al., 2022). How many died out of this sample size? 36 people. This would put the odds of dying from COVID at about 1 in 33,333. However, this comes with a huge caveat. 28 out of those 36 were over 65 years old and had at least four comorbidities. If you filter out that demographic and look at everybody else, including the elderly with one or two chronic conditions, the odds of dying from COVID is 1 in 150,000. Let's put that ratio in perspective. If you are vaccinated and have two or fewer chronic conditions, you are more likely to die from a lightning strike or earthquake, both of which are quintessential examples of statistical improbability. 

The odds of dying from COVID are low. The evidence base for face masks was never strong, a reality that becomes more apparent as we collect more data over time. The main epidemiological metrics show that we are over the emergency stage of the pandemic. Effective and readily available vaccines bolstered the case for returning to normal for most while still providing targeted, limited interventions for vulnerable individuals. So why are a significant percent of people still clinging to their masks? 

Section IV: Maskaholism, Social Costs, and Emotional Costs of Mask Mandates

I want to finally cover the idea of social costs surrounding masks since I think it will better answer the question "Why are we still masking?" Social costs are a consideration that economist Bryan Caplan brings up in his analysis on masks. While Caplan finds masks marginally uncomfortable, he hates wearing them and dislikes being around people who wear masks. He brings up the dehumanization of face masks. Faces are such major form of bodily expression. Masks erase our personhood, which makes sense because the number of instances that masks have been used to hide and obfuscate one's actual self, which can be observed in literature and in history. Masks also eliminate a form of non-verbal communication, which is to say that masks symbolically and functionally muzzle us. The considerations that Caplan brings up, particularly that of dehumanization, lead us to the concept of the known unknown, i.e., it cannot be quantified or monetized but it is very something that is in existence and worth taking into account. 

As you have noticed, I have been using the term "maskaholic" to refer to advocates of face masks and face mask mandates. Some of you hear the term "maskaholic" and think I am being unfair, insensitive, or mean to those who still wear masks when they are not obligated. I am using the term "maskaholic" because ever since I was introduced to the term "maskaholic" a couple of weeks ago, I have been looking at the advocacy of face masks through the lens of addiction. 

I can think of a few things that could cause a sense of addiction. One phenomenon is one that I observed when I was an Orthodox Jew: an addiction to stringency. Part of what led me to Orthodox Judaism is because they took it seriously. There was a zeal and a sincere commitment to Jewish life. What I learned quickly is that like anything else, there is too much of a good thing. It was one thing to have standards, but this went to a whole different level. I noticed people taking on personal stringencies, chumrot (חומרות), that went beyond the dictates of Jewish law. The ones who thought this way equated stringency and stricture with being a better Jew; it was a form of getting off on "stringency for its own sake." 

This stringency mindset carries over into the pandemic. Many countries went with the strict approach by implementing lockdowns because "we had to do something." It did not matter that pre-pandemic advice from experts was to not implement lockdowns. It did not matter the damage it caused to the economy, mental health, or the livelihood of millions. It also did not matter that lockdowns actually increased excess deaths. These stringencies show that you take the pandemic seriously and that you want to save lives. A similar "stringency for its own sake" approach has been taken with the face masks. It did not matter if you did not want to wear masks because simply they were too uncomfortable or if you had legitimate concerns about the efficacy of face masks, especially cloth face masks. From the maskaholic point of view, anyone who did not take the pandemic as seriously as you did were selfish assholes that wanted old people to die just so they could have the convenience of living their lives as usual.  

I do not think the "stringency for its own sake" crowd covers the majority of maskaholics, but it does account for a significant subset. A much larger contingency became maskaholics because of fear. I would like to elucidate upon this concept of fear further. In part, those who still want to wear the face masks want to feel a sense of security and certainty in what they deem "unprecedented and uncertain times." Let's forget that there have been pandemics before and life has always been uncertain. In spite of the low probability of dying from COVID, the pandemic has put the theme of death front and center. Prior to the pandemic, death was a topic that was avoided on a societal level. It was much easier to think about happiness, convenience, consumerism, and the rat-race than it was to be faced with the inevitable end that is death. Masks are either a subconscious expression that you are avoiding death in perpetuity or that you are avoiding thinking about death. 

Don't get me wrong. Fear can be a motivator in the short-run. If you are in the woods and a bear is behind you, fear is that emotion that can keep you alive. On on a more positive note, fear can motivate you to getting a promotion at work, pursuing a relationship, or buying a home. Fear can be helpful at times and has its place. The problem with fear in the context of this pandemic is that we have been on pandemic emergency mode for over two years. When your body is under prolonged stress, your body and mind begin to malfunction. The American Journal of Managed Care has a concise list of the effects of long-term fear, including mood swings, obsessive-compulsive thoughts, immune system dysfunction (e.g., headaches turn into migraines, body aches turn into chronic pain), being afraid to leave home because of paranoia, and distorted perception of sensory information, the latter of which makes it harder to make cogent and rational decisions. Is it any wonder that there was a 25 percent increase in anxiety and depression during this pandemic? Pandemic fatigue is real! 

To quote author and former monk Jay Shetty from Think Like a Monk (p. 67), "The problem with fear is that it's not sustainable. When we operate in fear for a long time, we can't work to the best of our abilities. We are too worried about getting the wrong result. We become frantic or paralyzed and are unable to evaluation our situations objectively or to take risks." With the symbolism behind the face masks, the mask and the mask mandates played their role in promoting a culture of fear. Even anecdotally, I generally noticed that my friends and family who did not internalize the fear were enjoying life during the pandemic more than those who did.

Dealing with this level of fear for two years is no way to live. The Egyptian writer Naguib Mahfouz said that "Fear does not prevent death; it prevents life," which is especially true when looking at the longer-term. Boxer Muhammad Ali opined that "He who is not courageous enough to take risks will accomplish nothing in life." Whether it is an addiction to certainty, a security blanket, the false notion that we can live forever, or a sense of purpose that comes from attaching oneself to stringency, the fear of COVID ended up being more paralyzing to society than anything else. 

Conclusion: Moral and Social Implications of Removing Mask Mandates

This is the social and moral argument against mask mandates. For those who take the masks seriously, interacting with people or even being near them triggers a fight-or-flight response. Instead of viewing others as fellow human beings, this culture of fear reduces other people to being viewed as vectors of disease. As long as mask mandates are part of our culture, they will continue to propagate the idea that we should be scared in perpetuity. 

As I already detailed, there is no legitimate public health rationale for face masks. Much like with the lockdowns, the burden of proof should be on the face mask proponents that face masks work. Arguing "why risk it", "what's the harm", or using worst-case scenarios that are divorced from reality does not do us any favors. Using arbitrary rules such as the mask mandates to perpetuate fear that is not based on epidemiological context so the CDC can maintain its power is downright irresponsible. So is making everyone's lives less pleasant because you have internalized overblown fears or because you cannot handle the risk that is an inevitable part of life. 

This might sound harsh, but that is because it is a form of tough love. Removing the mask mandate does not mean you cannot partake in some one-way masking if you feel like it. It just means that it does not compel those who do not want to wear a mask to put on a mask. While the decision to mask is up to you, I will say this. If your risk tolerance is extremely low or nonexistent, then you will have such a hard time adjusting back to living life fully like you did before March 2020. It will mean that you will continue to wear masks, socially distance, not take public transit, or not attend sporting events or concerts because fear of COVID, no matter what the actual risk level of contracting COVID is, becomes one of your most prevailing and defining values in life. This is why I said back in October 2021 that accepting risk once more is a prerequisite to going back to normal. 

Washington Post journalist Megan McArdle wrote that "They [the mask mandates] had to end sometime, and if not now, when?" It is a relevant question, and the answer is that "now is a good time." As McArdle points out, the mask mandates were meant to be a short-term solution to help flatten the curve, not a long-term lifestyle change. McArdle was right in saying that the more that politicians and public health officials move the goalposts in such a fashion (and I would add overstate the efficacy of face masks), the more they undermine their own credibility. 

Regardless of how you feel about face mask effectiveness, we have a high level of natural immunity and vaccine immunity. We have treatments that were not available in 2020. COVID has mutated into the milder Omicron variant. COVID hospitalizations have not been this low since this pandemic has started. Plus, so many of us have reached a level of pandemic fatigue that we are reassessing tradeoffs that we make in our lives. That pandemic fatigue is going to have an impact during an election year and how likely politicians are going to reinstate various COVID restrictions. Given all these trends I mention in this paragraph, I am cautiously optimistic that we are heading towards normalcy. 

Symbolically speaking, removing mask mandates will be a vital part of that transition. It means that we are not just tossing aside the face coverings, but the fear that too many internalized and made part of their being. It means that we accept that risk exists with COVID, much like we accept that anything we do in life comes with risk. It means we can physically and metaphorically breathe once more.