The Supreme Court ruled against the CDC’s moratorium on evictions but one respected blogger has stated this, in turn, makes the airline mask mandate illegal. I respectfully disagree.
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The CDC and the Supreme Court
This week, the Supreme Court ruled that the Centers for Disease Control and Prevention had overstepped its powers by issuing eviction moratoriums. The court found (as highlighted in Gary Leff’s post):
“The Government contends that the first sentence of §361(a) gives the CDC broad authority to take whatever measures it deems necessary to control the spread of COVID-19, including isssuing the moratorium. But the second sentence informs the grant of authority by illustrating the kinds of measures that could be necessary: inspection, fumigation, disinfection, sanitation, pest extermination, and destruction of contaminated animals and articles. These measures directly relate to preventing the interstate spread of disease by identifying, isolating, and destroying the disease itself. The CDC’s moratorium, on the other hand, relates to interstate infection far more indirectly: if evictions occur, some subset of tenants might move from one State to another, and some subset of that group might do so while infected with COVID-19. This downstream connection between eviction and the interstate spread of disease is markedly different from the direct targeting of disease that characterizes the measures identified in the statute. Reading both sentences together, rather than the first in isolation, it is a stretch to maintain that §361(a) gives the CDC the authority to impose this eviction moratorium.”
TL;DR: The CDC used part of its mandate to justify an action that was outside of its control. When taken in whole, the CDC exceeded its role and its eviction moratoriums are no longer valid.
Premise of Why Airline Mask Mandates Are Now Illegal
I respect, value, and appreciate Gary Leff and the work he does at ViewFromTheWing.com. Friendly, thoughtful discourse should be encouraged. While I don’t disagree with all of his arguments, the premise on this one is misaligned.
- The power of the CDC is limited to “identifying, isolating and destroying the disease itself”; therefore
- The CDC doesn’t have the power to force airline customers wear masks
Why That’s Not True
There are a few issues with Leff’s points on the topic.
- While the CDC meddling in real estate matters is certainly too far “downstream” of its powers, an argument could certainly be made that universal masking falls under “isolating and destroying the disease itself.”
- The CDC indicated the eviction moratorium was to avoid unnecessary moving around of communities by those who may carry the virus or be vulnerable. The court said that was too far downstream of the CDC’s directive, but limiting interstate travel to directly isolate and destroy the disease could fall within those parameters and most flights would apply to that standard.
- This mandate wasn’t made by the CDC. President Joe Biden issued the mandate by executive order.
- The Supreme Court’s ruling was specific to the powers of the CDC and not for government mandates broadly; so applying the ruling to the Biden Administration order would be incongruous with the ruling.
That last part is particularly important. Had the Supreme Court said that “COVID-19 doesn’t constitute an exceptional circumstance” that may lay claim to further legal challenges across the board. However, Republican Governors like Florida’s DeSantis have tried banning mask mandates and have failed in state court (Florida school districts fought and won.)
Regardless of the Supreme Court’s Ruling, Masks Will Still Be Required on Planes
Leff points out that US airlines had their own mask mandates seven months prior to the Federal government intervening. Businesses are free to impose their own restrictions that meet or exceed anything that comes out of the Oval Office or the East Room of the White House in Washington.
Even if Biden’s mask mandate was struck down in court (either as part of this ruling or separate from it) the airlines would likely reactivate their own. United Airlines has gone so far as to issue vaccine mandates to its existing employees, much in the same light as Biden ordered Federal workers to get the jab.
Vaccination rates have climbed even higher since the 70% of adults figure was reached on August 2nd with the US seeing one of its most active weeks in the last seven days. Given that the vast majority of US adults have had at least one shot of the COVID-19 vaccine (if not fully vaccinated) some see less need for mask mandates at all. Despite those higher vaccination rates, breakthrough cases continue to occur (vaccines are currently 42-96% effective against Delta variant.)
The data regarding air quality aboard an aircraft using HEPA filtration is far superior to other indoor scenarios, though close proximity to others is unique to air travel, yet this hasn’t been enough to sway scientists (something Leff adeptly points out.) A study this month showed that cloth or paper masks other than R95/KN95 are nearly useless anyway (10% and 12% effective, respectively.) None of this has supplanted the recommendations with respect to travel and the Supreme Court ruling won’t either.
Conclusion
Gary’s claim that the Supreme Court’s ruling on CDC powers make the mask mandates illegal is wrong based on the limiting verdict from the court. However, he’s 100% on target that it wouldn’t matter anyway because the airlines can choose to apply their own rules and standards. He’s also right that the case for masking up on planes is ignoring aspects of the science around the procedure, but that likely won’t change the policy.
What do you think? Do you agree with Gary Leff that the Supreme Court’s ruling on eviction moratoriums makes the mask mandate on airplanes illegal? Do you find, as I have, that it’s limited to the CDC and not Executive Orders?
“Study this month”??? Studies from the start have shown masks are ineffective, even n95s. They’re only meant for inert substances, not upper repository diseases (aka the flu). And just like any flu (why we get shots each year) there will always be variants. This is an endemic, no longer a pandemic. We have to live with this, as it will never go away. Masks optional and, as proper Americans, give folks a choice. Those that feel masks work can breath a sigh of relief as they virtuously feel protected while those that don’t should respect folks choice to wear them and the comfort it brings (the same respect they should receive). Time for us to let go of this obsession.
It may be true that masks have always been known to be ineffective, but the study cited is recent.
Kyle,
You write, “This mandate wasn’t made by the CDC. President Joe Biden issued the mandate by executive order.
The Supreme Court’s ruling was specific to the powers of the CDC and not for government mandates broadly”
This is just wrong. The President issued an executive order directing agencies to take certain actions. One of the things done following the executive order was for the CDC to issue the mask order under 42 USC 264(a) – the same exact authority under which they ordered the eviction moratorium.
If you do not believe me that it was “made by the CDC” the order is right here: https://www.cdc.gov/quarantine/pdf/Mask-Order-CDC_GMTF_01-29-21-p.pdf
Best,
Gary
Gary,
The CDC order you attached was issued eight days after Biden’s order which directed as follows:
(a) Mask Requirement. The Secretary of Labor, the Secretary of Health and Human Services (HHS), the Secretary of Transportation (including through the Administrator of the Federal Aviation Administration (FAA)), the Secretary of Homeland Security (including through the Administrator of the Transportation Security Administration (TSA) and the Commandant of the United States Coast Guard), and the heads of any other executive departments and agencies (agencies) that have relevant regulatory authority (heads of agencies) shall immediately take action, to the extent appropriate and consistent with applicable law, to require masks to be worn in compliance with CDC guidelines in or on: [it goes to list all of the venues for requirements]
So if the CDC order was ruled illegal because they overstepped – which the eviction case may or may not prove – the mandate would remain. The mask mandate still falls under the Executive Order which was not proven to be outside of the bounds of the executive branch. That order does not even specifically name the CDC as an agency directed to enforce or make an order or mandate, it falls on the TSA, DHS, and his jurisdiction over federal facilities for which all commercial airports are.
Superfluous as the CDC order eight days later is (and I think we would agree that it is), cancelling that superfluous order does not then supersede the prior order from the President.
Kyle,
Gary is right. To understand why, it is important to understand what an Executive Order is. EOs are not laws, and an EO cannot impose anything on the American people. An EO is an internal directive from the President (who is effectively the CEO of the Federal Government) to some portion of the Executive Branch directing them to take some action which is permissible under the authority given to them by Federal Law. Biden cannot (and did not attempt to) write an EO that orders Americans to wear masks on airplanes. Instead, he ordered the heads of several agencies to use any statutory authority that they had to impose a mask mandate. The response to that EO was the CDC order, which hinges on the same statutory authority that the Supreme Court said they did not have in regards to evictions. Mask wearing is certainly more closely connected to infection control than evictions are (although the effectiveness of masks is still very much in question) so the question of the statutory authority remains open, but the question still hinges on whether or not the CDC has the authority to mandate the masks.
I recognize that EOs are not laws and I don’t believe I referred to them as such. I also pointed out in one of the comments that the directive instructs other agencies (TSA, HHS) but specifically does not mention CDC (though it does say “applicable agency heads”.)
But we are getting a little downstream ourselves of what the issue is here. The Supreme Court found that the CDC (specifically) had overreached its power when declaring eviction moratoriums. Gary’s assertion suggests that then the mask mandate would have been too far downstream of directly addressing or containing the virus is probably a different matter as arguments could be made that it is part of its duty. However, assuming Gary is right and the CDC order is no longer valid – the other agencies would still have orders in place. So even if the CDC mask mandate is overturned (or made illegal) it wouldn’t make the others illegal.
@Kyle writes “assuming Gary is right and the CDC order is no longer valid – the other agencies would still have orders in place. So even if the CDC mask mandate is overturned (or made illegal) it wouldn’t make the others illegal.”
Also incorrect. If the Supreme Court were to strike down the CDC’s transportation mask order what other transportation mask orders would still be in place? The TSA rule is based on CDC’s authority discussed here. It has no independent authority to impose a mask rule (as Democrats in Congress have acknowledged when discussing whether to include such authority in legislation).
At a minimum a new rulemaking would be required, and that rulemaking would require first finding some other legal basis. I’m not saying that’s impossible, but it’s more of a stretch than even the CDC’s authority.
Now, would the Supreme Court actually strike down the mask mandate?
1. I don’t expect this will be fully litigated before the mandate expires, it’s likely to become moot.
2. My argument is that the same position the Court took in the eviction case applies equally to masks. We can have a debate over whether that’s true. I think it’s the better argument, but the federal government would stake out its own position seeking to differentiate.
3. A couple of justices in the eviction case 6-3 majority might not want to be seen striking down multiple covid restrictions, especially if the virus is spreading widely at the time it’s adjudicated.
Gary,
One of the key differences here is that the Supreme Court addressed both of these issues a few months ago with different results.
As you likely know the initial ruling on the eviction moratorium while allowing it to continue specifically stated that this was only because it was about to expire and Congress would have to act to preserve it. Since Congress would not act the Biden administration (correctly) took the position that their hands were tied and there was nothing they could do. The decision to reinstitute the moratorium was taken with the full knowledge that it would be struck down by the court but that it would buy additional time.
By contrast when a suit was brought before the court on the mask requirement the suit was flatly rejected.
Speaking personally I’d dearly love for all the mask mandates to go away but I see no indication that the Supreme Court is inclined to rule on the subject.
@121Pilot – the Supreme Court did not hear a challenge to the mask mandate. Justice Thomas alone considered whether to impose an injunction against the mandate in advance of any litigation even taking place over the mandate. Not surprisingly, he declined to do so.
Well that should close the discussion. (Gary Mike drop)
You (mainly Gary) can sit here and argue the cloth masks are not effective but to discount the entire efficacy of masks and use that as an excuse against the mandate borders on reckless.
Some European airlines have taken the appropriate step and mandated surgical or N/KN95 (level3 or higher) masks. Just because US airlines allow cloth masks doesn’t mean we should get rid of all masks.
@Pete – I didn’t write the report or participate in the study. It doesn’t make someone who reads it unqualified nor reckless, we are literally reporting the science. That said if a particular kind of mask is 4-5x as effective then require that as the European airlines have done.
Even when Gary is right, he is wrong. Master credit card hawker, sure. Credible voice of COVID policies, absolutely not. To anyone reading this, pls do not take health advice or embrace health policy ideas pitched by credit card hawkers. Don’t listen to me either. Listen real experts.
It’s not health advice it’s legal advice. Of course neither are lawyers and administrative law is rather specialized even for lawyers. Maybe they stayed at an HIX last night but that probably doesn’t qualify them to provide legal advice. Of course this is commentary not advice.
That said let’s be real – it is an interesting topic and we are all about page hits here.