Abstract COVID-19 has killed nearly one-million Americans, and its massive impact on society is still unfolding. The government’s strategy to combat the disease included an order regulating the wearing of masks on transit. Recently, a federal district court entered a nation-wide injunction against the government’s transit mask order, ruling that the order exceeds the statutory authority of the Centers for Disease Control and Prevention. The district court relied heavily on the statute’s “ordinary meaning” and especially one word: “sanitation.” Drawing on common textualist interpretive sources, including dictionaries and data from corpora, the judge concluded that a transit mask order is not a “sanitation” measure within the statute’s meaning. This essay confronts this textualist ruling on its own terms. It argues that linguistic principles and data support the opposite conclusion about “sanitation” and the statute’s meaning: The text authorizes a public-health promoting mask order. This essay’s linguistic analysis carries immediate implications for the case’s appeal. The analysis also has broader implications for the future of the U.S. government’s pandemic response abilities and for judges committed to “ordinary meaning.”
Unmasking Textualism: Linguistic Misunderstanding in the Transit Mask Order Case and Beyond (preprint)