Biden Administration Appeals Ruling That Struck Down Air Travel Mask Mandate

When a federal judge vacated the transportation mask mandate, the Biden administration immediately said they’d no longer enforce it. They didn’t seek a stay of the order. They didn’t ask airlines to voluntarily keep their own mandates in place, either. However the administration said they’d ‘defer to the CDC’ on whether the mandate was still needed.

The Biden administration faced a conundrum.

  • There was a growing chorus to lift the mask mandate, and they didn’t want to be the ‘party of restrictions’ going into the midterms.
  • But they didn’t want to be blamed for rising Covid cases (however unfairly) either.

They were given a political gift by the judge’s ruling, and as a Trump appointee whose nomination was opposed by the American Bar Association they were even given someone to attack.

The administration swung at a pitch in the dirt when the CDC declared it was necessary to appeal the ruling. They say the precedent matters but this is a mere district court ruling and an appeal creates the risk of a precedent. (Although in a major sense, last summer’s Supreme Court ruling in Alabama Association of Realtors v. Department of Health and Human Services is the major precedent limiting CDC authority already.)

It took over a month, but the Department of Justice has finally filed its appeal in the mask mandate case. The original order has expired and the administration hasn’t said whether or not they’d extend it (they almost certainly wouldn’t, but saying so could make their appeal moot).

Never bet against courts upholding government authority, however there are real problems with the CDC’s transportation mask mandate order beyond Administrative Procedures Act issues that have received the most attention.

  • In promulgating a mask rule the CDC relied on its power in 42 USC 264(a) to “make and enforce such regulations..necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession.”

  • The statute specifies examples of what the CDC may require: “inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary.”

  • By giving examples of what the CDC may do Congress limited the CDC’s power (‘other measures’ must be similar in kind to those specified).

  • And if Congress had not limited CDC power in its authorizing statute, it would have run afoul of the non-delegation doctrine – Congress is unable to grant an agency the ability to legislate its own authority.

Ultimately the Biden administration should have sought the authority it wanted from Congress (both houses of which were controlled by the President’s party!) but chose instead to issue administrative decrees of unclear legality. Since the mask mandate is not currently in effect, and the CDC is unlikely to extend it, it seems low probability that the Supreme Court will ultimately rule on the question. What happens at the appellate level remains to be seen.

About Gary Leff

Gary Leff is one of the foremost experts in the field of miles, points, and frequent business travel - a topic he has covered since 2002. Co-founder of frequent flyer community InsideFlyer.com, emcee of the Freddie Awards, and named one of the "World's Top Travel Experts" by Conde' Nast Traveler (2010-Present) Gary has been a guest on most major news media, profiled in several top print publications, and published broadly on the topic of consumer loyalty. More About Gary »

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Comments

  1. Since many airlines like Delta are experiencing staff shortages all the way around due to covid illnesses and other shortcomings it’s still too late to put the genie back in the bottle.

  2. The cult of masks continues to hold sway over these people. Despite overwhelming evidence that a piece of dirty cloth loosely draped over one’s face does NOTHING to slow the spread of a highly contagious virus (one for which we have both effective vaccines and therapies), the mask cult priests won’t let up.

    *someone is bound to comment that properly fitted N95 masks do offer at least minimal protection, but this means nothing since one is still free to wear one and the mandate never required them.

  3. @skooby Where is your info that delta is facing shortages due to covid? Assumption? It’s simply not true.

  4. I agree, they are trying to clarify (extend?) federal power and would have done much better with clear legislation. Of course if Congress was really functional these days the same may be said of a lot of things. As for trying to reimpose the mandate for anything short of the Black Plague…a line from Dudley Do-Right comes to mind. When the title character put an artillery shell backwards into a cannon, Snidely Whiplash didn’t believe it, saying “Nobody could be that stupid.”

  5. The current administration and their lackeys do not believe in our republican government founded 250+ years ago. They do not believe in the separation of powers and the rule of law. Instead, they rule by decree…an executive order. Only Congress has the power to legislate. Americans…hell..the world…is tired of this somewhat senseless mask mandate. If one does the math, more people (actual numbers and percent of population) died of the “Spanish flu” in the early 1900s than have died of COVID! If the current administration tries to re-enforce the mask mandate, our United States of America will be downgraded from the freedoms we enjoy into a quivering mass of “sheeple”… blindly following the edicts of “Fearless Leader”. “So, may I see your papers?” “You vill cooperate vith us or vee vill…”

  6. @phyphlyer. No speculation at all that’s what they said that is partly to blame for the cancellation of flights. They could have left covid out of the issues but didn’t.

    Quote below is from Delta: “”More than any time in our history, the various factors currently impacting our operation — weather and air traffic control, vendor staffing, increased COVID case rates contributing to higher-than-planned unscheduled absences in some work groups — are resulting in an operation that isn’t consistently up to the standards Delta has set for the industry in recent years,” said Delta’s Chief Customer Experience Officer Allison Ausband in a post on CBS NEWS.

  7. Just FYI-the American Bar Association is a private, professional/lobbying organization with no legal or licensing authority beyond that. The first thing I quickly learned as a young lawyer was to never cite the opinion of a law professor or the ABA in a legal brief.

  8. Delta will use Ukraine as an excuse their travel woes, as well as a groundhog seeing its own shadow. If anything, the only way Covid affected delta was when most of the airline industry caved to the “vaccine” religion.

    Covid sickness my arse. Pilots and Delta arent getting along, You really think Delta management will ever admit to cruddy employee negotiations?

  9. Personally I am hoping that the government looses it’s power to mandate anything when it comes to a pandemic. Looking forward the nature getting it right the next time. The world will. Be a better place with fewer idiots.

  10. Gary, you keep saying that the SC’s ruling on the Alabama case is a major precedent. It is quite literally NOT precedent.

    That ruling was for emergency relief, and granted partially with the opinion that the plaintiffs would be likely to succeed on the merits (because the government’s argument rested on the idea that people could potentially move, which the court thought stretched the statute beyond reason, and would give the government too broad an authority to make up justifications). It as not an actual ruling on the merits of the case. Petitions for emergency relief are not binding precedent, and also just because the Supreme Court issues an opinion, it is not automatically binding precedent.

    Not to mention, the statute does not say at all that they need to be “similar.” If you’re going to make an argument about what the statue specifically authorizes and doesn’t, you’re going to want to not make up language in the statue. Nowhere in the statue does the word “similar” appear. The actual text, as you’ve actually included is “as in his judgment may be necessary.”

    That said, I’m all for the mask mandate never coming back. But it’s a very different thing from an eviction moratorium.

  11. “Ultimately the Biden administration should have sought the authority it wanted from Congress (both houses of which were controlled by the President’s party!) but chose instead to issue administrative decrees of unclear legality.”

    That’s because it takes 60% of the Senate to enact legislation–not the simple majority the Democrats presently hold. The Republicans never would have agreed to such a power grab by the Executive Branch.

  12. “President” Brandon’s caretakers seriously overestimate the number of cowardly ninnies who will celebrate this decision and underestimate the number of actual Americans who will vote against his party as a result of it.

  13. @koggerj

    A Delta rep just stated that flight cancellations and staff shortages were due to several things including covid infections. I’m just repeating what THEY said if it’s true or not. I don’t care either way.

  14. As a healthcare worker in new york and has been through so many surges of covid the mask mandate is necessary. A friend of mine recently travelled and got covid from travelling because most of the unruly people on the plane were not wearing a mask. some of them are carrying the covid and do not know. The mandate is necessary because I do not want to be exposed to people who may be carrying the virus. It is still a problem in the USA and these idiots above who have never worked in a hospital and saying all kind of things about the Biden administration which is just trying to keep people safe. If you experienced 36 people dying in a day in a hospital you would show more respect and wear a mask on a plane. The US has over a million death from covid and it because of people like some of the one above that spread the disease to others because they do not want to wear a mask. WEAR A MASK TO HELP EVERYONE FIGHT COVID

  15. Curious why you think CDC will not maintain its recommendation for masking for indoor spaces where physical distancing is not viable? It is far easier to leave a recommendation in place than to take on the risk of being wrong, said many a government official. Changing CDC guidance impacts public transit in cities, several of which still have mask mandates on trains and buses. Compliance in cities such as NY is higher than you might think. This could blow back into public debate just as people go to vote in fall. Total mess.

  16. As a centrist, this is the kind of thing that sways me to vote Republican in the next election

  17. @miamiorbust I was in NYC and LA over the last week. The number of people I saw wearing masks was incredibly minuscule. Also, most of those that were had exposed noses or just wore it around their chin. It’s ridiculous and people seem to have moved on. We aren’t in March 2020 anymore…

  18. Just finished 25 days in Europe. Aside from having to get tested to get back in the USA, it was almost like COVID never existed. Mask, less than 0 and that included a cruise. Now the cruise staff was 100% masked, but after what that industry went through, totally understand. And oh, Biden was the topic from almost all taxi drivers – French & English – and it was not favorable. It was like how in the hell did you guys elect that idiot? America does not look favorable because of him.

  19. @janice Your friend traced their covid down to the “unruly” people on an airplane? They should share their contact tracing techniques with the US government. I call BS on that. This administration has done absolutely nothing to change the direction of covid. The mask mandate, like the testing requirement, needs to/should have ended long ago. This isn’t 2020, we have vaccines, treatments, etc. and it’s beyond time to move on.

  20. @Skooby – In the article in Delta’s hometown paper, AJC, there were so many reasons listed for the Memorial Day delays and cancellation, it’s impossible to believe them. Just like weather wasn’t a problem, neither was COVID. DL is mismanaged, short-staffed and incompetent. Somehow, AA and others had no issues and very few cancellations.
    BTW, DL was quoted on the radio and in AJC to have had 5% of flights cancelled for Sat 5/28, but FlightAware showed 9%. You can’t believe what Delta says anymore. Unfortunately…

  21. Is there ANYONE left who still believes this is about science?? This would be a great teaching moment except too many people are dug in ideologically or care more about the Kardashians, to see what’s going on.

  22. Well it would be unfortunate if the mandate was reinstated, as I think it would cause more disruptions and chaos, flight delays, etc. If masks really did work, everyone has the option to wear one, this is obviously the government trying to reinstate their power over the masses.

  23. This appeal isn’t about Covid masks, it’s about the next epidemic. Preventing the CDC from implementing restrictions in the next emergency and requiring Congress to legislate before the CDC could be disastrous. If they they get this power affirmed, one would hope they would go through the Administrative Procedures Act now to define what would be considered a health emergency, and what countermeasures the CDC could bring to the table. We may not need this again for years, but they should be able to act quickly if necessary. Meanwhile, more research is needed on disease distribution via aerosol mechanisms and protective measures. No one likes wearing a mask, other than people happy not having to wear makeup or smile all the time.

  24. Another argument that wasn’t brought up in the original decision is that the mandate violates the 10th amendment by applying to intrastate local transit.

  25. Let the clowns in the Federal Government run around like fools with their masks on to “set an (horrible) example. In the meantime, let us decide whether or not we want to wear these signs of oppression and overbearing!!

  26. This is a little off topic, but United Airlines (maybe others), have asked the FAA could they reduce the MANDATORY flight requirements for pilots from 1500 hours to 750 hours because they are that short of pilots. I hope the answer is a big FAT No!

  27. About time they started tackling this maks-free idiocy that’s leading to the current labor shortage as so many flight attendants and pilots catch COVID at have to stay home with fever etc. (some not being able to return to work for weeks or months due to long COVID — nobody wants a pilot suffering from brain fog up front!).

    Masks work at reducing the number of employees from calling in sick, and there’s (lots of) science behind it, with the latest being https://www.pnas.org/doi/10.1073/pnas.2119266119

  28. @ Doug: “We resolve conflicting results regarding mask wearing against COVID-19. Most previous work focused on mask mandates; we study the effect of mask wearing directly. We find that population mask wearing notably reduced SARS-CoV-2 transmission (mean mask-wearing levels corresponding to a 19% decrease in R). We use the largest wearing survey (n = 20 million) and obtain our estimates from regions across six continents. We account for nonpharmaceutical interventions and time spent in public, and quantify our uncertainty. Factors additional to mask mandates influenced the worldwide early uptake of mask wearing. Our analysis goes further than past work in the quality of wearing data–100 times the size with random sampling–geographical scope, a semimechanistic infection model, and the validation of our results.”

  29. Relax ok! Just because you don’t have it or think you won’t get it think about the next person will get it. I just came back from a vacation. USA isn’t the only county used mask. Keep your mouth to yourself and love yourself and stop think American is a waste when you don’t know what’s the other countries have. Stay safe, be safe and stop think you know something better than Congress and if you do why aren’t you one huh? Sit and drink some coffee

  30. Absolutely fascinating, at this late stage, that we still have people who haven’t figured it out. Everything about Covid has been a scam from the beginning. Full stop!

  31. Attention is being diverted away from UN and media focused on NATO. WHO mandates will nullify freedoms. Meanwhile WEF Young Leaders Program embraces all control . . . Nazis do what Nazis do . . . watch the Davos Summit videos.

  32. These morons don’t wear masks anywhere any more. This is all about telling you what to do and then make you pay for it for yourself and others. Maybe we should worry about the price of gas or, for that matter, bread, milk and, of course, infant formula.

  33. Because of the Munsingware Doctrine, waiting until after May 3, 2022 to appeal Judge Mizelle’s order, the Biden Administration significantly reduced the possibility of losing its appeal. The Supreme Court in its 1950 United States vs Munsingware decision, ruled that when an appeal becomes moot during the appeals process, the appellate court should generally vacate the lower court’s ruling. The mask mandate expired May 3, 2022 rendering the Biden Administration’s appeal moot. The appellate court will likely vacate Mizelle’s ruling, essentially wiping it from the books as if the case never occurred, thus preserving the CDC’s authority to protect the public in the future.

  34. My God, these people in government will do anything to avoid working. How pathetic they are. And how pathetic are we, because we just moan and complain. The US has got to be a laughing stock yet again for the way democracy has been eviscerated by a bloated, useless government.

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