The Justice Department told a court in Florida on Wednesday it is appealing a judge’s ruling invalidating the federal mask mandate on public transportation after the Centers for Disease Control and Prevention said the rule remains vital to protecting public health.
While it is unclear if the Biden administration will succeed, the move is likely to kick up a firestorm after many airline passengers gleefully ripped off their masks following the Monday ruling. Justice Department lawyers had said they were ready to fight the ruling but were waiting for the public health agency to give them the go-ahead.
“It is CDC’s continuing assessment that at this time an order requiring masking in the indoor transportation corridor remains necessary for the public health. CDC will continue to monitor public health conditions to determine whether such an order remains necessary,” the agency said. “CDC believes this is a lawful order, well within CDC’s legal authority to protect public health.”
After a confusing two days, the White House said it believed the decision to extend mask-wearing on planes, trains and buses was within the CDC’s authority and affirming that power was important given the uncertain nature of the pandemic — even if the mandate was set to expire on May 3.
The fight over the transportation mask mandate had been somewhat of a “Catch-22” for President Biden, who has repeatedly deferred to the CDC.
He is caught between that deference to public scientists and a pandemic-weary public that wants to shed masks and other rules, although an Associated Press-NORC poll on Wednesday said most Americans support a mask mandate on public transportation.
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Still, the administration could be kicking the hornet’s nest after passengers enjoyed two days of mask-free travel on planes, Amtrak, major transit systems and even Uber and Lyft.
Missouri Attorney General Eric Schmitt, a candidate for Senate, seized on the news as a sign the administration is wedded to pandemic rules.
“The Biden Justice Department is appealing the mask ruling on public transportation,” the Republican tweeted. “They’re not giving up on COVID tyranny. No more mandates. Americans want their country back.”
Legal experts said the administration faced a dilemma no matter which path it chose. The appeal could lead to a precedent-setting decision up the judicial ladder that could water down the CDC’s powers.
“If it simply leaves the judge’s ruling unchallenged, it will make it hard or impossible to reinstate the mask mandate if there are future surges of hospitalizations and deaths. But if it appeals, it could lose at the 11th Circuit or Supreme Court,” Lawrence O. Gostin, a global health law professor at Georgetown University, told The Washington Times before the Justice Department and CDC acted.
U.S. District Judge Kathryn Kimball Mizelle, a Trump appointee, ruled Monday that the CDC overstepped its authority and did not justify issuing the advice that underpins the mask mandate. She said the mandate ran afoul of federal law because it did not adhere to the Administrative Procedures Act when issuing the order.
The ruling rippled through the U.S. and prompted major airlines to drop their mask rules. Major transit systems and ride-share services also made face coverings optional.
The Biden administration swiftly objected, saying public health experts should make the ultimate decision on masks and it was reasonable for the CDC to request an additional two weeks to study the trajectory of the BA.2 variant instead of letting the mandate expire on April 18.
Judge Mizelle canceled it for them on Monday, forcing the administration to mull an appeal, though no agency seemed willing to make a firm call Tuesday.
“The department continues to believe that the order requiring masking in the transportation corridor is a valid exercise of the authority Congress has given CDC to protect the public health,” Justice Department spokesman Anthony Coley said late Tuesday. “That is an important authority the department will continue to work to preserve.”
Josh Blackman, a professor at South Texas College of Law, said the administration could try to run out the clock by filing a notice of appeal, while letting the policy expire on its own terms in 10 days.
It could then ask the 11th U.S. Circuit Court of Appeals to vacate the trial court ruling as moot, he said before the CDC’s action Wednesday.
The practice is known as the “Munsingwear” doctrine. It is named after a case in which the Supreme Court held that, because intervening events made an issue moot and difficult for appellate judges to review, the underlying decision had to be vacated.
Mr. Biden has tried to bolster the CDC, considered the world’s premier public health agency after the Trump administration was accused of sidelining the agency.
But that deference has led to political headaches of late.
The CDC recently advised the administration to lift Title 42, a pandemic order that allowed the U.S. to turn away many migrants at the southern border, as of May 23.
The decision sparked fear of a migrant surge, especially among centrist Democrats in border states, and upended Senate negotiations over a $10 billion COVID-19 funding package.
Republicans said if Mr. Biden needs more money to fight COVID-19, then Title 42 should remain in place to thwart the virus.
White House press secretary Jen Psaki said Wednesday that CDC continues to call the shots, including on the mask mandate.
“They obviously put in place this two-week extension because they felt they needed that to take a look at the data, given that we’ve seen a rise in cases,” she said. “We certainly anticipate to hear more from them soon on their [request to] have that time, which we think is entirely warranted.”
The AP-NORC poll said 56% of Americans support a mask mandate on planes, trains and public transit compared to 24% who oppose it and 20% who say they’re neither in favor of it nor opposed.
The poll of 1,085 adults was conducted Thursday through Monday — the day the mask mandate was struck down — and had a margin of error of plus or minus 3.9 percentage points.
“Public polling does not actually show that there is a universal view of people getting rid of masks,” Ms. Psaki said.