The general counsel of the Texas Public Policy Foundation told The Star News Network the legal theory behind the federal lawsuit filed by the foundation Wednesday on behalf of Representative Elizabeth Ann “Beth” Van Duyne and Texas Attorney General W. Kenneth Paxton petitions the court to strike down the Centers of Disease Control mask mandate on airplanes and public transit as unlawful and unconstitutional mitigation for the COVID-19 pandemic.
“Well, the basis is twofold,” said Robert Henneke, who is also the foundation’s executive director.
“First of all, there is no statutory authority for the Centers for Disease Control to command that all Americans have to wear a face mask covering when they travel,” Henneke said.
“The statute that CDC points to in terms of quarantining infectious status is not a statute that gives the agency the authority to do what they did, so the mandate is unlawful,” said the former Kerr County Attorney.
“Second, it’s unconstitutional because it violates the non-delegation doctrine in that Congress has never passed legislation that grants the executive branch the power to do this,” he said.
The non-delegation doctrine relies on the divided powers of the different branches and levels of the governments, Henneke said.
“First, [you] have to recognize the different levels of government and the different types of authority that each government level has,” said the graduate of the University of Texas School of Law.
“While states have general powers for public health and police powers, our federal government is one of the limited enumerated powers that limited the federal government’s powers to only those that were set forth in the Constitution,” he said.
“The federal government does not have general public-health powers,” he said. “It has to tie its authority to a specific grant of authority in the Constitution, and in this case, there is not the authority that was granted through the Congress of the United States that was given to the executive branch.”
Henneke said constitutional government relies on each part of the government staying within its authority. “The fact is that the federal government, the executive branch, the Biden administration simply does not have the power to make these edicts or to set policies for anything that it wants to do.”
During the last major national pandemic scare – the 1918 Spanish Flu, or the Great Influenza pandemic – the states themselves were where the action was taken, Henneke explained.
“I think it’s a good example as to why what the federal government is doing is unconstitutional,” he said. “When our nation was created, the states were the primary form of government. The states were the ones that maintained public health powers.”
The case law that emerged from the 1918 pandemic addresses how the states acted, said the resident of Austin, Texas, where he lives with his wife and two sons.
“By contrast to that, with what the federal government has done with the airline mask mandate, with the private employer vaccine mandate, with the residential eviction moratorium, those regulations are not lawful,” he said. “They’re not within the powers of the federal government, and they’re not within the power of the executive branch to command by fiat.”
Henneke said President Joseph R. Biden Jr. and his administration could end the mask mandate on airplanes and public transit, and the suit would be over.
“I would say that in cases where you have groups that seek to create status or to obtain wealth from the government by suing to win something that they otherwise have been unable to do so, our case and our focus is limiting government power, limiting authority, and forcing the federal government to exist within the bounds of its lawful authority,” he said.
“Certainly, I would have hoped by now the Biden administration would have done the right thing and canceled this and many other COVID mandates, but because it has not, we’ve taken our case to the courts to have the courts strike this down as unlawful.
“I think there’s a good chance that this will be accelerated faster than most litigation,” Henneke said. “Already, the federal judge that this case was filed before has ordered the parties to meet and confer and to propose a briefing schedule to the court and also propose agreed hearing dates.”
The attorney said this signals that the court is ready to act.
“This is very quick action by the court on the day the lawsuit was filed, and before the government has even tendered its response, so it shows to me that the court is aware of the importance of this case and is wanting to address our injunction motion on an accelerated basis, and certainly a win from that would likely be appealed by the federal government to the Fifth Circuit.”
Henneke said he was ready to take the case all the way to the high court.
“Depending upon the outcome of that case, this is something that could again be in front of the Supreme Court here in the next several months.
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Neil W. McCabe is the national political editor of The Star News Network. Send him news tips: [email protected]. Follow him on Twitter: @neilwmccabe2.
Photo “Robert Henneke” by Texas Public Policy Foundation.
