Unmasking Textualism: Linguistic Misunderstanding in the Transit Mask Order Case and Beyond

Columbia Law Review Forum, Volume 122: 192-213 (2022)

22 Pages Posted: 6 May 2022 Last revised: 2 Feb 2023

See all articles by Stefan Th. Gries

Stefan Th. Gries

University of California, Santa Barbara (UCSB) - Department of Linguistics; JLU Giessen

Michael Kranzlein

Georgetown University, Department of Computer Science

Nathan Schneider

Georgetown University

Brian G. Slocum

Florida State University, College of Law

Kevin Tobia

Georgetown University Law Center; Georgetown University - Department of Philosophy

Date Written: December 9, 2022

Abstract

COVID-19 has killed over 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 vacated 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 Piece evaluates this ruling on its own textualist 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 Piece’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.

Keywords: ordinary meaning, textualism, statutory interpretation, mask order, COVID-19

Suggested Citation

Gries, Stefan Th. and Kranzlein, Michael and Schneider, Nathan and Slocum, Brian G. and Tobia, Kevin, Unmasking Textualism: Linguistic Misunderstanding in the Transit Mask Order Case and Beyond (December 9, 2022). Columbia Law Review Forum, Volume 122: 192-213 (2022), Available at SSRN: https://ssrn.com/abstract=4097679 or http://dx.doi.org/10.2139/ssrn.4097679

Stefan Th. Gries

University of California, Santa Barbara (UCSB) - Department of Linguistics ( email )

Santa Barbara, CA 93106
United States

JLU Giessen ( email )

Licher Str. 64
Giessen, 35394
Germany

Michael Kranzlein

Georgetown University, Department of Computer Science ( email )

United States

HOME PAGE: http://https://www.michaelkranzlein.com/

Nathan Schneider

Georgetown University ( email )

Brian G. Slocum

Florida State University, College of Law ( email )

425 West Jefferson Street
Tallahassee, FL 32301
United States
(850) 644-7294 (Phone)

Kevin Tobia (Contact Author)

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States

HOME PAGE: http://www.law.georgetown.edu/faculty/kevin-tobia/

Georgetown University - Department of Philosophy

37th and O Streets, N.W.
Washington, DC 20007
United States

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