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.
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 When taken in whole, the CDC exceeded its role and its eviction moratoriums are no longer valid.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.
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?