CDC Plans To Try To Re-Impose Mask Mandate

The Biden Administration was let off the hook from making a difficult political choice.

  • They need the mask mandates to end before the midterm elections. Public health arguments simply do not support compulsory masking on planes (and few other planes) at this stage in the pandemic when vaccines and therapeutics are available and hospital ICU resources aren’t strained by Covid.

  • But they also face political backlash for ending restrictions as cases are beginning to rise.

A federal judge made the decision for them, so they got the mandate out of the way without having to do it themselves. And it’s a Trump appointee, a former clerk of Justice Thomas, whose nomination had been opposed by the American Bar Association. They even had a judge to attack, and politicians can always score points with their base attacking judges.

The Biden administration didn’t seek an immediate stay of the judge’s order. They didn’t immediately appeal. They said they would appeal but only if the CDC said it was important to do so. They looked foolish appearing not to have spoken to the CDC yet, but more importantly they appeared to forget that the CDC advises the President, the President doesn’t answer to the CDC.

Now the CDC has issued a release saying they’re asking to appeal the ruling. And the lede here isn’t that an unelected judge shouldn’t be able to overturn important protections for the American people during a pandemic. Instead they open by saying they’re doing this “To protect CDC’s public health authority.”

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.

The judge ruled that the CDC lacked the authority in its authorizing statute to mandate masks, which is entirely consistent with the view expressed by the Supreme Court in Alabama Association of Realtors v. HHS last summer that the statute needed to be read narrowly. The judge also ruled that the CDC, in issuing its rule, failed to follow requirements of the Administrative Procedures Act. If the Administration wanted a mask mandate, they should have gone to Congress (both houses of which are controlled by their own party) for the authority.

The administration is now stuck, having said it’s up to the CDC, being forced to argue for the mask mandate when travelers have largely stopped wearing masks, where the airline industry has asked for the mandate to be over, and where once again CDC and administration guidance is unclear.

While the CDC, in its release, says masks continue to be important they have still failed to articulate the criteria that would lead them to no longer seek a mandate for transportation. They simply say they “will continue to monitor public health conditions” – but their criteria is a secret one, known only to them (if even to them). They note the effectiveness of masks against infection, and of course travelers can wear well-fitting N95 masks (or P100 masks, and since the mask mandate has ended, those masks can even have valves).

The CDC and the Administration has bungled this. They should have taken the win of having the mandate end without their having to end it. Now the best they can do is file an appeal, without having the order stayed, and then let the appeal become moot with the expiration of the rule. Worse would be to litigate this aggressively with the ensuing chaos of trying to re-impose the mandate, and find themselves back in the lose-lose situation they were in before they were given a gift by the judiciary.

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. @David

    You clearly did not read the judge’s ruling in its entirety.

    “Reading a statute narrowly DOES NOT mean reading a statute ridiculously. So the CDC only has authority to clean up pathogens once they’re spread and does not have authority to stop the spread of them to begin with?”

    Had you read the full well written ruling, you would have learned that the government cannot quarantine or restrict the movement of non-infected people. You can’t take one part of the statute without considering the statute as a whole.

    They also waited over a year to implement this mandate, yet they couldn’t wait another month to get pubic comment and therefore not violate the APA.

    The CDC has overstepped its authority and has been already hammered by SCOTUS when it comes to vaccine mandates, screwing over landlords by allowing people to not pay rent, and shutting down the cruise industry.

    There is no way Biden will the appeal. You simply cannot force healthy people to wear a mask. And it’s questionable whether you can make sick people wear a mask. They claim science dictates, yet have not provided any science on why people should wear masks.

    Continue to wear your mask @David and enjoy life.

  2. To you libitards who have your panties in a bunch because a district judge has shut down this ridiculous mandate. That is exactly what you Left Wing Nut Jobs did to the Trump Admin every time he did something that you didn’t approve. Which was everything. You went judge shopping and filed a lawsuit. Good job though lefties, keeping up your title as All Hypocrite, All the time

  3. Folks should stop providing opinions unless they actually understand that the appeal actually has nothing to do with COVID or mask wearing. It’s all about the ability of the CDC to manage public health in public health emergencies.

    Left standing, for example, the current ruling would mean that if there was a chemical attack on the USA, the CDC could do nothing to enforce measures to save certain death of thousands or tens of thousands.

    I know some folks will advocate that people should get to decide for themselves. And maybe it’s wrong that people should be protected from a decision that, due to their lack of understanding, will result in their certain death from such an attack.

    It’s no different to asking should the Pentagon have the authority to deploy the army to prevent those same people from entering the area subject to that chemical attack. Are those folks advocating that the Pentagon should not have that authority?

    And where does that end? Should the Pentagon not have the authority to defend the US if invaded? People should get to decide for themselves whether to defend against the attack or not?

  4. khatl,
    you clearly do not understand the issue at hand although you admonish people for trying to slam people who have inserted their opinions.
    You are correct that this appeal is much more about the future than the present.

    The issue is not about acting in an emergency for any branch of government. There are emergency procedures that can be used. The issue is that masks were used for 2 years despite a single vote in the Congress on the issue; there is a point where emergency powers have to yield to elected representatives.

    and secondly, the CDC has to have the statutory authority to do what the military clearly has. There is also an issue regarding the role of states and the federal government. There was no doubt early in the pandemic that states and local governments have power re: health regulation that the federal government does not have.

    and third, there are processes that have to be followed and the federal court ruled that the CDC and TSA did not follow those procedures. Had they followed those procedures, there could have been a very different outcome. and yet the CDC has not said it would correct how it handled those procedures but instead would appeal the whole decision. In other words, they don’t want to be held to an administrative standard that Congress voted on but instead be free to do as they want.

    The US has 3 branches of power and the ruling has its core the failure to respect the separation of those 3 powers.

  5. The problem with government is when they gain a little power, they think they own you and you MUST obey. The government clowns seem to forget is that ‘we the people” own the government.
    I notice I never see the Biden clown wearing a face mask in public anymore. Hypocrite.

  6. It’s really easy for the Biden Administration to have the authority to impose a mask mandate. They just need Congress to give the authority to CDC. And Democrats control the House and Senate. The problem is that they don’t want to vote on it, and the Senate has already voted against it. They’re not just stretching the authority beyond the language in the CDC’s authorizing statute, they’re doing so at the express objection of the Senate.

  7. It’s really easy for the Biden Administration to have the authority to impose a mask mandate. They just need Congress to give the authority to CDC. And Democrats control the House and Senate.

    @Gary — That is a joke, right? How “easy” do you think it would for the Dems to pass what would be, by any measure, contentious legislation in a 50/50 senate that includes Manchin and Sinema, who’ve already torpedoed key parts of Biden’s agenda? Mission impossible.

    I think that

    @Tim Dunn — @khatl gets. You don’t.

  8. cleaner:

    It’s really easy for the Biden Administration to have the authority to impose a mask mandate. They just need Congress to give the authority to CDC. And Democrats control the House and Senate.

    @Gary — That is a joke, right? How “easy” do you think it would for the Dems to pass what would be, by any measure, contentious legislation in a 50/50 senate that includes Manchin and Sinema, who’ve already torpedoed key parts of Biden’s agenda? Mission impossible.

    @Tim Dunn — @khatl gets it. You don’t.

  9. Think of the cost in time, effort and money for all the legal, medical and government minions associated with this exercise……What continued waste of taxpayer money in which the US seems to do so well in so many cases. Sad.

  10. DCS – isn’t that the point? If this administration can’t implement it legislatively, does it really represent the will of the people? The science underlying the mandate is already hugely suspect.

  11. @GKK — Congress does not need to pass a new law. It simply needs to strengthen and protect from partisan abuses the one already on the books that allows the CDC to take the “measures necessary” to control and prevent communicable diseases.

    The “interpretation” of the law now on the books by a partisan and unqualified 35-years old “judge” in Florida was so utterly stupid and ridiculous it may, in fact, be the reason for why the CDC decided to let the DoJ appeal. They believe that it is an easily winnable case and are willing to gamble it even with a courts system that is packed with conservative judges.

  12. The science underlying the mandate is already hugely suspect.

    -GKK

    That is pure nonsense. There is solid science underlying the mask mandate. Like most who make such comments, you simply have not taken the time to inform yourself about it or tried but could not understand any of it…

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