The fight over the transportation mask mandate is turning into a “Catch-22” for President Biden, who wants to support the Centers for Disease Control and Prevention and its powers but doesn’t want to risk a bad result on appeal.
The Department of Justice said it will fight a court ruling that struck down the federal mask requirement on planes, trains and buses — but only if the CDC determines it is necessary for public health.
The mandate had been slated to expire May 3, so the administration might decide not to kick the hornet’s nest after passengers ripped off their masks mid-flight upon learning of the court’s ruling. It also might search for ways to run out the clock in court.
“The White House faces a dilemma. 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,” said Lawrence O. Gostin, a global health law professor at Georgetown University. “I think the strategy may be to let the mandate lapse but fight it in court later if it deems necessary to reimpose masking on planes and mass transit.”
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.
SEE ALSO: Canceled public transportation mask mandate prompts patchwork of rules across U.S.
The Biden administration objected to the ruling. It said 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, leaving the Justice Department to mull an appeal.
“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.”
At the same time, the Justice Department said it needs the CDC to reassert that preserving the mandate is truly necessary.
Josh Blackman, a professor at South Texas College of Law, said the goal right now might be to run out the clock instead of risking precedent-setting decisions in the higher court. Last year, the Supreme Court turned away the Biden administration’s attempt to extend a nationwide moratorium on evictions.
“The more likely play is to file a regular notice of appeal, let the policy expire on its own term in 10 days, then ask the 11th circuit to vacate the trial court ruling as moot,” Mr. Blackman said.
The practice is known as the “Munsingwear” doctrine 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.
The legal back-and-forth is part of a broader quandary for the Biden administration, which has repeatedly deferred to the CDC after the Trump administration was accused of sidelining the agency.
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.
But 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.
For now, the White House is defending the CDC’s voice in deciding public health matters, including its decision to prolong the mask mandate on transportation as cases steadily rise in parts of the country.
“Right now, we are of course deferring to the CDC on what they believe is needed at this moment,” White House press secretary Jen Psaki said Wednesday. “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. We certainly anticipate to hear more from them soon on their [request to] have that time, which we think is entirely warranted.”
“I would expect you will hear from the CDC very soon,” she said.
Pressed on its timeline for advising Justice Department attorneys, the CDC said it is a work in progress and continues to recommend mask-wearing on public transportation.
“We will continue to assess the need for a mask requirement in those settings, based on several factors, including the U.S. COVID-19 community levels, risk of circulating and novel variants, and trends in cases and disease severity,” the agency told The Washington Times.
“Public polling does not actually show that there is a universal view of people getting rid of masks,” Ms. Psaki said.
For more information, visit The Washington Times COVID-19 resource page.
• Tom Howell Jr. can be reached at thowell@washingtontimes.com.
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