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.
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