UPDATE: The Biden Administration will appeal a federal court ruling earlier this week vacating the federal mask mandate.
To protect CDC’s public health authority beyond the ongoing assessment announced last week, CDC has asked DOJ to proceed with an appeal in Health Freedom Defense Fund, Inc., et al., v. Biden, et al. 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. CDC believes this is a lawful order, well within CDC’s legal authority to protect public health.
U.S. District Judge Kathryn Kimball Mizelle of Florida ruled that the mask mandate exceeded the statutory limit of the CDC. While many immediately dismissed her as Trump appointee and former clerk of Justice Clarence Thomas, her role as a district court judge is to respect precedent and the U.S. Supreme Court narrowly construed the same authority in Alabama Association of Realtors v. HHS.
Put another way, as this case works its way up to the conservative 11th Circuit Court of Appeals or even ultimately to the Supreme Court (though I would not except the SCOTUS to grant cert), it is unlikely there will be a different outcome.
In that sense, perhaps this is a more calculated political move by the Biden Administration trying to appeal to its base, because by appealing the CDC will likely find its power even more sharply limited in future health crises.
But if politics was at play, this seems to me like a stupid move compared to blaming “activist” judges that their hands were tied and just leaving it at that. By fighting an unpopular mandate among key players (travelers, the airline industry, and even airline labor), the Administration will only exacerbate a political problem.
Of course health transcends politics, but the CDC has wholly failed to articulate under what objective conditions the mask mandate could be limited, instead only taking a cautionary approach that led to confusion…and ultimately mistrust…when even so-called “blue” jurisdictions rolled back indoor masking requirements.
Mark this story as developing, but I cannot imagine a scenario in which an appellate court or the Supreme Court would overrule the decision of Judge Mizelle.
The original story appears below.
The Biden Administration has indicated it is ready to appeal the ruling of a federal judge in Florida which vacated the federal mask mandate, noting the Justice Department will defer to CDC guidance on the matter.
Will Biden Administration Appeal Judicial Decision That Vacated Mask Mandate?
Earlier this week, a federal judge in Florida vacated the federal mask mandate, writing in her decision that the U.S. Centers for Disease Control and Prevention overstepped its statutory bounds in enacting a mandate on transportation, including planes, trains, and busses.
The Biden Administration was left seemingly speechless over the decision, at first not responding and then simply noting it would consider its options (even as the Transportation Security Administration, the federal agency tasked with implementing the mask mandate, said it would no longer enforce it).
Now word has emerged that the U.S. Justice Department, under the guidance and direction of the Biden Administration, is prepared to appeal the federal judge’s ruling should the CDC determine “that the order remains necessary for public health.”
That statement seemed to catch the CDC by surprise, which issued its own statement an hour later stating it was reviewing the matter:
“CDC continues to recommend that people wear masks in all indoor public transportation settings. 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.”
Appealing this ruling could be dangerous for the Biden Administration because if an appeals court or eventually the U.S. Supreme Court upholds the district court ruling, it could greatly limit the emergency powers of the CDC to address future outbreaks by creating binding new precedent.
This becomes a game of chess, and with the mask mandate scheduled to sunset in less than two weeks anyway, the Biden Administration may “pick it battles” and just let this one go.
CONCLUSION
The Biden Administration says it is ready to fight in court to reinstate the mask mandate, but only if the CDC says it is necessary. My own assessment is that the Justice Department will pick its battles wisely and simply let the mask mandate expire, saving a judicial debate over the powers and limits of the CDC’s “sanitation” power for another day.
image: Frontier Airlines
I don’t think the CDC should be able to run the travel industry anymore like they did the last 2 years. Recommendations at best should be their only role. I think the mask mandate issue has been an L for them but I think they are saving their dry powder for another day (another variant?)
The internal politics here are fascinating. DOJ has essentially washed its hands from the decision and CDC does not appear eager to risk having its authority over these type of mandates permanently curtailed by a higher court.
If I were POTUS, I’d see this as a fight not worth fighting.
Except POTUS is not running the country. He can’t even go out in public without aids, or the Easter Bunny, leading him around. You are correct it would be stupid to fight it. But the hard core leftists running things might just be dumb enough to do it. Interesting times indeed. Sad too.
Well if they don’t appeal then until the issue comes up again the CDC’s powers will be curtailed by this decision.
I’m glad the mask mandates are going away, but by any reasonable reading of the statutes governing the CDC’s authority, mask mandates are well within their congressionally mandated powers. The inept and partisan Trump appointed judge essentially rewrote the statute to strip the CDC of that power to reach her desired outcome. Her decision is a brazen example of legislating from the bench and judicial activism, hacking up an act of Congress to impose her politics on the law.
@Matthew – You are correct on this one.
Nothing but political posturing to appease their whacko covid cultists supporters. Biden can say he fought it to keep them happy while the next 12 pass and the mandate expires. Blame it on the Trump judge. The airlines are happy because they got rid of the masks early so Biden gives a win to them too. This is all so obviously staged that a first grader can see through the bull manure.
the CDC is not a fourth branch of government. End COVID hysteria.
“If you’re fully vaccinated and can take your mask off, you have earned the right to do something that Americans are known for all around the world: greeting others with a smile. With a smile. So, it is a good day for the country.”
-Joe Biden, May 2021
I am really surprised that the Biden admin did not see this coming. They had a chance a week ago to do it themselves and perhaps nudge up a few approval points. Instead they have lost this moment entirely.
Honestly, why are you shocked? They seem to miss every opportunity to stop the erosion in public opinion against them.
They blame everyone except themselves for problems, doing the exact opposite of what Joe ran on, accountability.
Even you as a liberal have to see it and can’t be happy about it.
It does seem like we are watching the intentional and systematic destruction of the democrat party in real-time. did you see those polling numbers on hispanics? lower support from them for biden than from white people. the tide is shifting.
Well given that the ruling has no basis in law and the judge (who never actually had tried a case in court) completely ignored the laws governing the CDC and precedent to reach the outcome she wanted it’s not surprising the was a surprise to the Biden administration. Any decent lawyer would have seen this as an easy case for the CDC, but they forgot to take into account the fact that so many Trump appointed judges don’t care about the rule of law or existing precedent if it conflicts with their desired outcome.
Personally, I’m glad the mask mandates are being lifted. But as a lawyer who can read and who has a brain, the decision has no basis in law and was wrongly decided. The Biden administration is likely appealing this not to reinforce masking, but because the decision is wrong and they don’t want it to have any precedential effect.
Time will tell, but I predict the ruling will be appealed. It is too much of a direct challenge to the dem’s power–the power to demand mask obedience of their subjects, and the power to usually get the ruling they want from the judiciary.
What makes this whole debate doubly stupid is the dems control both legislative bodies and the presidency–they could simply pass a bill that authorizes the CDC to demand masks when ever they deem necessary, instead of trying to torture the language of the 1942 law to try and get statutory permission.
Their leadership couldn’t even pass their actual policies, and the Senate actually already voted 57-40 to remove the mandate, (and Pelosi wouldn’t bring the bill for a vote on the house) so that route wouldn’t be viable either.
It is very baffling why they are holding on to this political loser of an issue.
They can’t really pass any legislation on this, as it would require 60 votes to even make it to a vote. So that would never happen.
Also, any administration—Republican or Democrat—looks first to what it can do through executive action before trying to go through the long slog of legislation.
I recognize district court decisions are not precedents but remaining silent on a court ruling that CDC does not have broad authority seems absolutely at odds with decisions made across two administrations. The FL ruling isn’t a procedural ruling. It is a claim about authority of public health agencies to make and delegate enforcement of rules in the event of health emergencies. All outcomes here are bad. Rehashing a largely outdated masking policy is a no-win for CDC and DOJ. Appearing to follow courts by altering policy shreds CDC’s limited remaining credibility. Clarifying an overly broad district court rulings impacting governmental authority is what DOJ does every day. It is why there are appeals courts. To punt here is equivalent to having popular opinion determine if DOJ takes up an issue. That is an ugly can of worms. Don’t see how DOJ, particularly under an administration aligned with a push for social change, cannot take up a case that limits broad authority delegated to agencies implementing federal authorities. If we want to at least pretend we still live in a society with rules, DOJ cannot punt on this.
Exactly. Regardless of what happens on appeal, mask mandates aren’t coming back, but the executive branch can’t just sit by and do nothing after a Trump appointed judge hacks away at powers granted to it by the Constitution and Congress.
Zero chance this is appealled for legal reasoning you point out as well as public opinion. Biden missed a huge opportunity to moot this case by dropping the rule earlier this month and is now politically weakened by the ruling. No one wants this mandate anymore–the noise made by the FA unions is way overwhelmed by the media (social or otherwise) depictions of airline employees celebrating the demise of the mandate.
Sara Nelson’s thug group aside, seems like anecdotally, lots of FAs are happy about the mandate repeal a few days ago.
That’s because you and your friends made them miserable for the last 2 years. If you would just follow directions like they teach in kindergarten they probably wouldn’t be as relieved as they are now
Looks like they are dumber than I thought…
This administration is dumber than we all thought. That is why we have expensive gasoline, high inflation, etc. etc. What if they win the appeal? Then how much longer will they push the mask rules? 2023, 2024. It’s insane.
For the people who are cheering, were they happy when previous presidents had their actions overturned by one federal judge. This is dangerous ground when a single federal judge can have so much power.
On a related topic, the government was LYING when it said “masks don’t protect you, they just protect others”. Maybe a bandana or really flimsy mask that is true.
Maybe the bureaucratic way was to have the mask rule as an emergency then have hearings and public comment before a final rule?
I get that many feel that the judicial branch or even a single judge has a lot of power but the CDC shouldn’t have so much power and it’s much worse. A single judge could sentence a person to death for a crime is one example of the powers we give to the judicial branch.
The old coot has decided to see how low he can go in the approval ratings. Just flew on Delta for 4 hours. 95% of the Delta lounge had no masks. TSA employees had no masks. My plane was full and maybe 3% had masks. All FAs had no masks. I had a chat with the FA and asked how she felt about no more masks. Her response: “Relieved!! This has gone way too far and we couldn’t do our job anymore since we spent all out time making sure passengers had their masks on. Other passengers complaining they didn’t want to wear masks and others complaining of people not wearing their masks correctly. The nonsense is over.” Now, I f B_____n wants to keep shooting himself on his foot it is his problem.
The old coot really wants to see how low he can go on his abysmal approval ratings. Just flew on Delta for 4 hours. At the Delta lounge 95% had no masks. TSA employees had no masks. FAs in my flight had no masks. Maybe 3% of my full flight had masks on. I asked the FA how she felt with no more masks. Her response: “ The insanity is over. This should have stopped a long time ago. We could no longer do our jobs since all we did was check people to ensure they were wearing masks.” Now, if B_____n wants to keep driving towards the cliff it is his choice.
Sorry for two posts. First one disappeared from the screen so had to write a similar one. Please delete one.
I have a hard time seeing the CDC suddenly deciding masks are not necessary. So I suspect there will be an appeal. And remember, a lot of people in the administration favor continued mandatory masking just in case.
good, let them appeal and let it go all the way to the supreme court for resolution. that will be great precedent to avoid future power grabs like this one that has gone on for years now.
The only ones making any “power grabs” are this unqualified Trump appointed judge and her fellow conservative jurists. Any one who can read would be able to see that (like it or not) the CDC has the power to mandate masks. The judge just ignored the law and rewrote it to reach her desired outcome.
mandates are not laws, so no, they don’t have the power. I am sure the conservative Supreme Court will agree.
Don’t worry. You’ll still be allowed to wear a mask on the plane and we won’t even make fun of you 🙂
Flew 2 routes yesterday and zero FA’s and maybe 15% of customers had masks on. The flying public voted, any polls showing differently are biased in who they surveyed.
15%? That’s better than the 10% that Hunter gives me (the big guy) from his side hustle in China.
Terence Samuel, NPR’s managing editor for news, on the Hunter Biden laptop, October 22, 2020:
“We don’t want to waste our time on stories that are not really stories, and we don’t want to waste the listeners’ and readers’ time on stories that are just pure distractions.”
how the tables have turned.
It’s really sad how incompetent, power hungry, and lost this Biden administration is. I really don’t want another 4 years of Trump, but at this point Trump will easily beat Biden in 2024. Super sad that this administration and their incompetence is going to give us another 4 years of Trump.
trump is not my lord and savior like he is for some however his economy was way better than this, dems are going to cheat like never before in 2024
Yep Trump laid out the playback. If the dems lose its because it was rigged and fake electors will be installed to make sure Biden stays in office. But since he’s kind of old Hunter will be put in office instead. How do you like them apples?
If the mandate is reinstated, will the administration call them Putin masks?
the putin mask hike. hike that mask over your nose and mouth.
yes Jared, it was terrible under trump! I payed less taxes, could fill my pickup for half of what I do now, my wife could spend 25% less on our grocery bill, not much talk of nuclear war, secure southern border and a wall being built, interest rates below 3%, prosecutors actually put criminals in prison, and boys were not allowed in girls sports or restrooms.How’s that defunding the police working out? Black homicides up 30% Have I left anything out( OK he did hurt some peoples feelings)
But Orange Man bad 1/6/21 bad
I never said orange man was bad would take him over what we have now any day
If your unhappy then Biden is doing his job. Trumps sole mission was to anger democrats so turn about is fair play. I only wish Biden had the guts to make your life more miserable
Sounds like the Biden Administration is going to appeal it according to Jonathan Turley. After Biden said passengers should decide. Who is running this White House?
Can’t make this shit up.
they will lose on appeal so let them appeal
Like typical losers, a lot of Americans are going to look for scapegoats for the shitty lives they have due to their own bad choices.
Mask mandate shouldn’t be a big deal. Its pretty small in terms of impact to your life amongst many other things. But losers are going to latch onto it, blame their loser life on mask mandate and whine about biden administration.
Biden is doing nothing wrong., you just can’t win against a loser looking for a scapegoat to blame.
Look clown, I don’t always get along with some of the people here, but I guarantee you there aren’t many losers in life on this site. It’s filled with successful people with successful careers, large assets and who travel around the world.
And most think it was time for the mask mandate to end for every reason in the book. Both liberal and conservative states and cities ended it. And science showed it was theater, but you know that already.
Total bad take on your part. Read the room before making yourself sound like an ass.
I am speaking in generalities, if you make it personal you must believe it applies to you.
We are at a point in our culture where one might talk down about rapists, pedophiles and terrorists and white Republican men get offended because it identifies with their persona so closely.
Now off you go, go grab your neighbor by her pussy, like white Republican men seem to think it’s ok to do.
If I were speaking in generalities I would tell you to stop calling me multiple times a call with your horrible attempts at English trying to get credit card numbers. I’d say all you people are dirty and drink from filthy rivers while over populating your country. While worshiping a fat man and cows along with a lady you called “Mother” who was a child abuse enabler.
But that would be wrong, I’m sure your not like those people.
AP poll finds that 56% favor mask mandate with 24% opposed.
Morning consult poll finds 59% support the mandate with 32% opposed. For the record, this poll was not kind to Biden in other areas.
These are within the last week.
Maybe it’s not the political loser everyone thinks it is.
It’s just the people opposed drown out the people who are ok with it… like the delta pilot that harrased former surgeon General Jerome Adams today for wearing a mask
Get out of your cave. Flew yesterday and 95% of the passengers had no masks. TSA employees had no masks, FAs had no masks. Met a dozen people for dinner that flew from all over the country and they all said the same including one that was on mid flight on Tuesday when the pilot announced that mask mandate was off. He said people cheered like in a graduation party throwing their masks in the air. Who did they interview? My neighbor that drives alone in her car wearing surgical gloves and a N95 mask? People are done with this BS and the Demented in Chief keeps caving his whole deeper and deeper.
That certainly doesn’t jibe with the amount of people who are wearing masks on planes.
On my flights the other day I would put the % of people wearing them at about 15-20 % and probably less in the terminal.
Yes, but the guy above watches CNN from his cave so he believes in Santa and in the Easter bunny. Anyone that was on an airport this week after the mask mandate was gone can attest that this poll is a lie. When TSA employees and airlines employees ditch the masks it tells you a lot about how Americans feel about this theater.
I was on LGA – MDW on Wednesday and it was much closer to 50/50 which matches the poll. Maybe it’s just people in educated cities know that mask wearing is the smart thing to do
LOL!! NY is very smart. They ask proof of vaccination for people to get into restaurants. Follow the science.
There’s a reason why New York and Chicago are financial centers and Birmingham Alabama isnt
Was it the same Jerome Adams who tweeted in 2020:
“Seriously people – STOP BUYING MASKS! They are NOT effective in preventing general public from catching #Coronavirus”
Yes because we all know the number one principle of science is that nothing ever changes. What was thought to be true 2 years ago must be true for eternity. Maybe you all shouldn’t have slept through science class
Everyone saying that Biden is going to be damaged by reinstating the mask mandate if the appeal is successful are kidding themselves. Less than 10% of people fly more than a couple times per year. Do you really think anyone outside of that 10% is changing their vote because they had to wear a mask on their single flight of the year?
LOL!!! Are you in the poll business? The Demented in Chief approval ratings are so good, right? He doesn’t need the less than 10% that you are excluding here to go even lower. Carter will become a great president by November 2024 when this fool will be taken to a nursing home. By that time he will be a champion in bingo and solitaire since starting this November he won’t have much to do at the White House so he will practice his game.
Biden can piss off anyone he wants right now. Once the Supreme Court overturns Roe v Wade this summer everyone who is crying about mask mandates will be shocked into remembering what really matters. Dont forget this… once the boomers die off your party will become extinct.
Keep dreaming, Comrade
You should check the polls and the voting trends of Hispanics. That demographic is not working out like you intended
Republicans will become the dominant party for the next 50 years
They haven’t won a popular vote since 2004, and before that since 1988. Republicans are clearly the minority and are only still a viable party because of gerrymandering. Eventually even that will no longer save you. So enjoy it while you can. There’s not enough Hispanics to make up for the old white people that will soon die of en masse.
Well, this is becoming difficult to imagine over the next few weeks. You thought masking was an issue before, now it’s going to be a nightmare to enforce. I realize that this is more about protecting future areas where the CDC should not be blocked during a public health crises. But the cost is going to be terrible. There is going to be confusion on flights and outright chaos.
Finally we have competent adults running things at the White House. I don’t know about you, Stuart, but I take comfort in that.
Adult who doesn’t know where he is or what day it is. And you know it. Must either be gay or a groomer because that’s all he has left for support.
And even a far left nutcase like you sees it.
I also thought that they just wanted to preserve CDC’s “emergency powers” for the future but it looks more like they outright want the mask mandate back. Which means their May 2 expiration has been a farce all along.
Of course they want the mask mandate back as soon as possible, and forever going forward. It’s real purpose it to get you to recognize resistance to any progressive government policy is futile. Your job is to OBEY. After all, it is only for your own good.
Can you provide more context on why you are certain Supreme Court would not hear the case? Roberts has shown little appetite to override executive branch or Congress on controversial issue and preference to keep the court out of being the final word on controversial topics. Not sure he wouldn’t punt this back to CDC if given the chance. Would still need one more vote but doesn’t seem like a slam dunk that courts want to set a narrow precedent. Would have implications for Title 42, student loan repayment deferrals and range of other topics. District Court seems to want to make a point on n topic of federal authority. Supreme Court seems much more inclined to muddle through. Wouldn’t throw away those masks yet.
Based upon the SCOTUS throwing out the the rent eviction moratorium, I believe they would do the same thing with masks.
Appreciate your thoughts. This seems to be significantly more on point in terms of CDC powers during health emergency than rent eviction or the convoluted employer vaccine mandate with byzantine list of arbitrary carveouts but we’ll see. Interesting times. Biden Administration could make many of the points on masking moot by simply not renewing Public Health Emergency Declaration related to COVID. Last renewal April 12th was bit of a headscratcher. Of course if they opt to not renew that runs squarely into Title 42 with no plan B on immigration. Can’t believe someone in administration didn’t foresee that a district court looking for its 15 minutes of fame would come down with this type of ruling. Really should have been a strategy to contain a predictable maneuver. Politics aside, never good to have the executive branch look like a bunch of amateurs.
i think they would hear it. it only take four votes for them to decide to take it. they don’t need roberts and can still lose another.
I think even the conservative majority would rather let the 11th Cir ruling stand, assuming masks stay off, then weigh in with a decision of its own.
I think they should take it just because the CDC is going to try reimplementing masks over and over again. Would rather a SCOTUS decision make it final against these “mandates” which are not laws passed by Congress so we can say goodbye to this issue once and for all. Seems the issue will keep coming up if not? unless I am misunderstanding.
“But if politics was at play, this seems to me like a stupid move compared to blaming “activist” judges that their hands were tied and just leaving it at that. By fighting an unpopular mandate among key players (travelers, the airline industry, and even airline labor), the Administration will only exacerbate a political problem.”
I suspect Biden’s handlers are gambling that even if SCOTUS upholds the ruling, Roberts will so narrowly tailor the ensuing 6-3 opinion that it’s pretty much useless outside of this fact pattern. I.e., they uphold the ruling on the basis that CDC’s one sentence justification doesn’t cut it, but don’t rule on the merits of the mandate itself – basically kicking the can and telling them to come back with a better memo, with the hope the mandate dies on the vine in the meantime. On the other hand, they probably see the potential payoff – albeit a longshot – that the ruling gets overturned, and the “public health exception” to the Constitution is effectively codified, allowing pretty much anything to be declared a “public health emergency” open to emergency rulemaking.
Of course, the risk is that the 11th upholds and Gorsuch ends up authoring an opinion that completely nukes the definition of a public health emergency, putting future state/local mandates in jeopardy in the process.