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.