Alan Dershowitz to Newsmax: Mandates Will Fail Without Congress Approval

Alan Dershowitz to Newsmax: Mandates Will Fail Without Congress Approval Travelers transit through Miami International Airport in Miami, Florida, on April 22, 2022. (Daniel Slim/AFP via Getty)

By Sandy Fitzgerald | Friday, 22 April 2022 02:27 PM

Federal mandates on matters such as vaccinations and masks will all fail if enacted by administrative agencies such as the Centers for Disease Control and Prevention but not approved by Congress, Harvard Law professor emeritus Alan Dershowitz said in a Newsmax interview Friday.

And, Dershowitz told Newsmax's "National Report," the Department of Justice's appeal of a federal judge's ruling to stop mask mandates on mass transit will likely fail because the CDC didn't "follow the rules" by instituting the policy without also seeking legislative approval.

"What's important to do is to have the administrative agencies follow the rules and then put this issue in front of Congress or to ultimately be deciding as to whether people who fly on airplanes have to wear masks if they refuse to make that decision," said Dershowitz.

Meanwhile, the administrative agencies that make decisions such as the mask mandate "aren't doing their jobs and they're not following the law carefully," said Dershowitz.

"It shouldn't be administrative agencies that make these decisions," he said. "That should be Congress."

Such mandates will continue to fail unless legislatures enforce them, said Dershowitz, as that is what the Constitution requires.

"We have a tripartite system of government," he added. "The legislature makes the law. The executive applies the law. But in these mandates, it's been the executive that's been making the law."

Further, Americans can vote for their legislators to represent them in such matters, as opposed to people in agencies like the CDC, Dershowitz said.

Dershowitz said there is "mixed messaging" about the mask mandate, as the courts have refused to directly confront the issue of whether mask mandates are legal.

"They found every possible way to avoid the issue," said Dershowitz. "The judge in Florida said that the CDC didn't appropriately dot every I and cross every T."

The Supreme Court has upheld some mandates, and if there are no definitive decisions, different parts of the country will apply different rules on mandates, Dershowitz said.

He added that it's going to be difficult to measure the rights of people who don't want to wear masks against the rights of people who do want to wear them.

"Under this ruling, I don't have the right not to sit next to somebody who is not wearing a mask," said Dershowitz. "I'm going to wear a mask. That's my decision. But I would like to sit next to somebody on the airplane who's also wearing a mask. That reduces considerably the likelihood of me getting COVID."

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