December 2, 2021
4-Year-Old Autistic Boy Asks Supreme Court to
Enjoin Federal Transportation Mask Mandate
Emergency Application Targets TSA Mask
Enforcement Just as Biden Set to Extend Orders Again
Dec. 2, 2021
By LUCAS WALL
WASHINGTON – A 4-year-old Florida boy who suffers from Autism Spectrum Disorder and can’t medically wear a face covering is asking the U.S. Supreme Court to block the Transportation Security Administration’s ability to enforce the Federal Transportation Mask Mandate, which President Biden plans to announce today his administration is going to extend a third time until mid-March.
In an emergency application delivered to the high court Wednesday – which should be docketed and submitted to Chief Justice John Roberts today – Michael Seklecki Jr. of Sanford, Florida, his father Michael Sr., and Lucas Wall of Washington, D.C., jointly ask the Supreme Court to stay enforcement of the mandate pending final disposition of their petition for review in the U.S. Court of Appeals. Michael Sr. and Wall can’t tolerate covering their face due to their anxiety disorders.
The Sekleckis must fly often between their home near Orlando and Boston for Michael Jr.’s specialty medical care. Their next flight home from Boston is scheduled for Dec. 9.
“Being denied the right to fly because we can’t wear masks jeopardizes my son’s life as it’s not practical for us to make the lengthy drive to and from Boston every time he has a medical appointment,” Michael Sr. told Roberts in the 83-page application accompanied by 234 pages of exhibits. “Should TSA be allowed to continue to mandate masks, my son could miss critical medical care, which could be fatal. My family and I would suffer enormous irreparable harm.”
The Sekleckis have been banned by Frontier Airlines and harassed by Spirit Airlines because Michael Jr. can’t wear a mask. Wall, who has been battling the FTMM and seven airlines’ illegal discriminatory mask policies in court since June, was banned by JetBlue Airways for suing it.
Wall is booked to fly to Germany on Dec. 10 to visit his brother and sister-in-law, which he has been trying to do since July but keeps getting refused because of the mask mandate. This is all happening despite the fact Michael Jr. and Wall both have doctor’s notes saying they are exempt from mask mandates.
“Media reports abound this year of disabled children being removed from planes because they can’t wear masks,” Michael Sr. said. “It’s hard enough for parents traveling with young children, especially kids such as my son who have special needs. The mask mandate – and airlines’ refusal to grant medical exemptions – has made it a complete nightmare. Instead of ending this discrimination, the president today is going to extend it another two months. This puts Michael Jr.’s life at stake as we must fly to and from Boston about twice a month for his highly specialized healthcare. The Supreme Court must stop this insanity.”
The application notes the high court “has issued at least six emergency injunctive orders in the past year or so unequivocally holding that governments may not restrict constitutional rights or disregard clear statutory terms even in the name of fighting a pandemic. Because TSA issued the challenged orders without constitutional, statutory, or regulatory authority, this Court must immediately block TSA’s enforcement of the FTMM, as numerous tribunals have done in halting similar pandemic measures.”
The Sekleckis and Wall present a dozen legal arguments for why the FTMM is illegal and unconstitutional. They are among a group of 14 flyers from nine states and the District of Columbia who filed six lawsuits Oct. 19 charging TSA with exceeding its authority by continuing to extend the FTMM. The Sekleckis and Wall are among four petitioners in the case first filed with the U.S. Court of Appeals for the 11th Circuit in Atlanta, then transferred to the U.S. Court of Appeals for the District of Columbia Circuit. That court, in a one-paragraph order, denied Nov. 10 their emergency motion to stay the TSA orders until the case is decided. Roberts receives emergency appeals from the D.C. Circuit.
The application stresses that Congress has never enacted a mask mandate. And just like the Centers for Disease Control & Prevention’s attempt to ban evictions without congressional authority, an order the Supreme Court struck down Aug. 26, TSA likewise has no legal ability to issue directives that aren’t related to security.
“TSA doesn’t have any authority from Congress to mandate what travelers must place on our faces,” the Sekleckis and Wall argue. “TSA isn’t assigned the job of health inspector or disease preventer. Its mission is transportation security, period. Congress named respondent the Transportation Security Administration, not the Transportation Health & Disease Control Administration. TSA, trying to become THDCA, has massively exceeded its statutory authority by, for the first time, claiming authority to regulate nonsecurity matters such as face masks.”
The application argues TSA issued the mask mandate: 1) in excess of its statutory and regulatory authority; 2) based solely on a CDC order that the agency issued in excess of its statutory and regulatory authority under the Public Health Service Act; 3) in violation of the 10th Amendment; 4) in violation the constitutional guarantee of freedom to travel; 5) in violation of the Fifth Amendment right to due process; 6) in violation of the Air Carrier Access Act; 7) without notice and comment required by the Administrative Procedure Act; 8) in an arbitrary and capricious manner; 9) in violation of the Food, Drug, & Cosmetic Act; 10) in violation of Occupational Health & Safety Administration regulations; 11) in violation of several international treaties the United States has ratified; and 12) in a way that can’t survive strict scrutiny.
“In recent months, numerous federal courts have struck down unlawful COVID-19 orders issued by the Biden Administration including the eviction moratorium, restrictions on cruiseships resuming sailing, and several vaccine mandates,” Wall said. “It’s time the Supreme Court adds the mask mandate to that list. TSA has no business ignoring its duties to ensure transportation security by policing whether travelers and transportation workers put a worthless piece of cloth over their nose and mouth.”
The application cites 223 scientific studies, medical articles, and videos showing masks don’t reduce the spread of respiratory viruses but cause dozens of harms to human health. It also discusses how the mask mandate restricts the disabled who can’t have their oxygen sources obstructed from using any form of public transportation nationwide.
“TSA’s mask mandate blatantly discriminates against Americans with medical conditions who can’t wear masks,” the applicants assert. “TSA’s discrimination against the disabled is extremely difficult to write about for us, and its numerous false claims below that the FTMM doesn’t unlawfully bar those with medical conditions who can’t wear masks from traveling are insulting. The Health Directives purport to allow the disabled to get mask exemptions, but the reality is TSA and the airlines have made it nearly impossible. We have qualified disabilities but can’t get exemptions. TSA failed in the Court of Appeals to contradict that the FTMM violates the [Air Carrier Access Act] in at least eight ways.”
Applicants request Roberts rule by Dec. 8 so the Sekleckis can fly home mask-free Dec. 9 and Mr. Wall can take his long-delayed flight Dec. 10 to visit his family who reside in Germany.
The case is Wall v. Transportation Security Administration, No. 21A198.
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