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Do you mean the CDC is not omnipotent?

Daniel R. Suhr | Congress makes the laws, not Dr. Fauci

Dr. Anthony Fauci on Capitol Hil in January Associated Press/Photo by Greg Nash (pool)

Do you mean the CDC is not omnipotent?
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As the saying goes, power corrupts, and absolute power corrupts absolutely. After two years of nearly absolute power over the world’s leading superpower, Dr. Anthony Fauci seems to be going through withdrawal. You can almost visualize him shaking his fists at the sky, “Why won’t everyone do as I say anymore?”

Exhibit A for the separation symptoms is a recent interview with CBS, in which Dr. Fauci attacked a decision last week by a federal judge to strike down the much-hated public transportation mask mandate. “Those types of things should be decided as a public health issue by the public health organizations, in this case, the CDC,” he said. “This is a public health matter, not a judicial matter.”

Fauci continued, “One of the problems that we have there is that the principle of a court overruling a public health judgment by a qualified organization like the CDC is disturbing in the precedent it might set.”

The problem here is not U.S. District Judge Kathryn Kimball Mizelle and her ruling, but rather that we have a chief medical adviser to the president who is apparently unfamiliar with America’s constitutional order. Our nation is not a Tolkien fantasyland where there is one ring to rule them all, and it is entrusted to the Centers for Disease Control and Prevention. Actually, we have three separate and equal branches of government, and the CDC is not one of them.

As Albert Mohler pointed out, Judge Mizelle’s decision on the mask mandate was thoughtful, thorough, and a model of legal scholarship. But the primary conclusion she reached was straightforward: The CDC’s statutory authority does not give it this power.

In all of the rulings by which courts have struck down a nationwide governmental mandate, it has been because the courts concluded that Congress did not authorize such action. Policies struck down by the courts include the CDC’s eviction moratorium, the Occupational Health and Safety Administration’s vaccine mandate, and now the travel mask mandate. None of these were constitutional holdings that could only be overturned by a subsequent U.S. Supreme Court decision or constitutional amendment. They were all interpretations of statutes. It is not the job of administrative agencies to set unlimited policy or make laws, regardless of whatever messiah complex its bureaucrats take on.

If Dr. Fauci does not like the law, he should convince Congress to change it.

Congress could give the CDC power over evictions or vaccines or travel. All the courts have done is look at what Congress authorized the CDC to do (“inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected”), compared it to what the CDC was doing (a nationwide rental eviction moratorium, a nationwide travel mask mandate), and applied what I call the Sesame Street rule of statutory interpretation: “One of these things is not like the other.”

If Dr. Fauci does not like the law, he should convince Congress to change it. After all, with Democrats in control of the House, the Senate, and the White House, you would think such a task would be eminently doable. If it is not, it is because so many Americans are dead set against the policy at issue that their elected representatives are willing to buck a president of their own party to oppose one of his legislative priorities. This is undoubtedly the case here. Fauci’s term as a cultural power player is expiring. He could serve us all by riding off into the sunset with his generous government pension.

To return to fifth grade civics for just a moment: Congress makes the laws, the executive branch (which includes the CDC) administers and enforces the laws, and the judiciary interprets the laws. In this instance, Judge Mizelle did exactly her job. She read the CDC’s governing statute and concluded that Congress had not authorized a power to mandate masks. She did not “overrule a public health judgment.” Her opinion uses lawyerly tools such as dictionaries and precedents to determine the meaning of the words Congress enacted as applied to this situation.

Judge Mizelle’s job, in other words, was to remind Dr. Fauci and his colleagues of the nature of their jobs as public servants. The American people have not authorized them to be our public health overlords, designated to rule free from congressional accountability or judicial review for as long as they determine a pandemic may last. Their role is limited, democratically defined, and constitutionally conscribed, just as any exercise of power should be. We know absolute power corrupts—which is why our Constitution does not confer it on anyone. Not even to Dr. Fauci, not even in a pandemic.

Daniel R. Suhr

Daniel R. Suhr serves as managing attorney at the Liberty Justice Center. His clients include victims of cancel culture, parents seeking educational alternatives for their children, and citizens speaking up in the public square. Before joining LJC, he served as a senior adviser to Wisconsin Gov. Scott Walker and a law clerk for Judge Diane Sykes of the 7th U.S. Circuit Court of Appeals. He is a member of Christ Church Mequon, an Eagle Scout, and a fair-weather runner. He’s married to Anna and loves building Legos and watching Star Wars with their young sons, Will and Graham, at their home near Milwaukee.


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