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.
BWAHAHAHAHA. Suckit all you freedumb loving, wannabe virology and epidemiology experts. Put your face diaper back on, idiot Trumptards.
Flew today on Delta on a 4 hour flight. Starting at the airport, not even TSA employees were wearing a mask. 95% of people in the Delta lounge had no masks. 95% of passengers on my flight had no masks. FAs had no masks. I asked them how they felt with no mask requirement and they said “relieved!!!”. They said it was a nightmare to keep masks on planes. Now, if the old coot wants to keep testing how low he can go on approval ratings, be my guest and try to bring masks back. What is the difference between having no masks on airports vs on a sports arena? Brandon should be in a nursing home.
If they try to reimpose the rule they’ll be in a far worse position than they were before. I simply cannot imagine the resistance that would erupt, and the political damage that this would do. As I said yesterday, the problem is there’s no end game plan here. Waves will come and go but the virus won’t and at some point such measures become impossible. They should have taken the excuse. I’m a liberal independent who wishes that thuggish sociopath in the White House had been locked up in the Big House, but Biden’s failure of nerve is breathtaking.
Completely agree with your assessment.
I’ve made this suggestion before, but I think we’re at the point of it maybe becoming a reality. When half the flight or more simply refuse to comply. On every flight. Then what? Shut down all air traffic by diverting every flight and ban half the American public from flying? Good luck with all that.
All laws, rules, mandates & authority require the consent of the people to be effective. That consent requires a degree of faith and trust in those governing institutions. That seems near impossible now.
I agree with Gary. The Administration were sort of in a win-win position; if things stay good, they can claim they did the right thing by not challenging the verdict. If things go south, they could have blamed the Trump-appointed judge. They’re never going to get this genie back in the bottle, but assume they’re doing this due to the longer-term precedent it could set.
Behold Gary! Public Health Expert. Legal Scholar. Credit Card Hawker. Truth!
Once again the Joke Biden clown car administration demonstrates its total unhinged incompetence. Instead of moving on and taking the off ramp, they’re doubling down on a useless mask mandate, and they have caused more chaos and confusion with the American traveling public. What a bunch of buffoons!
Again, Gary’s got it wrong.
The administration has appealed the decision, but they haven’t asked for a stay while the appeal is being considered.
So this appeal is about the precedent that the ruling sets for the government’s appeal to issue public health orders; and the limits that the Florida judge’s ruling would place on that authority. This appeal isn’t about “re-imposing the mask mandate”. It’s about broader authorities and precedent…
Don’t get your legal analysis for a credit card salesman.
@Peter White – it was a District Court decision, there’s limited precedential value
Gary. Why do you think you know anything about this issue. I would just shut up and stay away from a subject you know very little
A better structural fix would be to re-delegate this authority from the CDC to the Surgeon General.
Put one strong MD in charge of public health and let them broadly mandate the relevant national quarantine / travel restriction / nonpharmaceutical interventions.
In the years where it’s some random dude who says the President is the perfect model of physical health you’ll get a weird national response, other years you’ll get a decent one. As long as they give travel bloggers a special cordon sanitaire bypass ID I think we can all agree this is the best way.
The choice is up to the individual: to wear or not to wear, that is the question. No reason to get mad at a person who wants to wear a mask & vice versa.
@ Santastico — You may not agree with President Biden’s policies, but he does not belong in a nursing home. You try doing his job and then tell me how easy it is. The insuation by you and others that he is senile is an insult to those who have to care for someone who actually is senile. I guess you haven’t experienced a parent with dementia yet? Hopefully not.
Yesterday, Biden said that Americans should decide themselves whether to mask on planes. This appeal contradicts Biden’s statement. I don’t understand how the administration can function in a way that contradicts itself so heavily.
This whole issue could have been prevented if flight attendants did not enforce these ridiculous and Orwellian rules. They could have simply ignored them. The CDC mandate would be meaningless then.
The Bar association of each state is corrupted to the core by leftism and those who support a tyrannical government (democracy) over freedom. Conservatives should have their own Bar associations in conservatives states and national Bar association.
Marv,
Bring it on, I can’t wait to see them try their luck in the 11th circuit where this appeal will be heard. Now in addition to being a political disaster for this administration by elevating it this has the potential to be much more damaging to the powers of the executive agencies if the ruling is reaffirmed by this fairly conservative circuit. They just can’t take an off ramp even when one if gifted to them from heaven.
Carlos
Gary is just as entitled to express his thoughts and opinions as you are. You and people like you are jeopardizing a free society’s ability to express opinions and have a constructive public discourse. The “shut up you don’t know what you are taking about “ is very sophomoric and counterproductive. Instead why don’t you enlighten us with your opinion ?
Bob,
you described exactly what Gary said right after saying he got it wrong.
He didn’t get it wrong and highlighted exactly what the issue is about – as I just posted in a previous article before this article was released.
The CDC is appealing to try to preserve its right to impose mask mandates and other public health measures in the future.
They aren’t interested in public health right now because they aren’t expediting their appeal and they aren’t asking for a stay of the judge’s order.
Either the CDC has the legal authority to do these kinds of things or they don’t. The case will probably work its way through the courts, covid will be long over and the now-conservative leaning court will likely rule the CDC doesn’t have the authority to do what they got by with for 2 years.
Strange that there is now a movement to figure out whether what was done 2 years ago was legal.
Maybe there will be as much enthusiasm about figuring out how covid started in the first place.
The Administration is making [another] big mistake.
The District Court decision is not binding on any other court.
A Court of Appeal decision, however, will be binding on the entire 11th Circuit, which is the entire SE U.S.
They should have let well enough be.
As quoted by your words yesterday, “And the people in charge at the White House aren’t dumb.”
Buhhh hahahahahahahaha
The Biden Terrorist Organization just doesn’t know when to shut up.
@Jackass Waterson: I almost laugh when you post but I keep thinking you really believe the unhinged shit attributed to your name. Wtf, your parents are like you or did you develop this act on your own.
@Gene: a demented person like him should never be a president of this country. He is totally unfit for his job. If you feel sorry for him, take him home and make sue you feed his Metamucil everyday.
@ Santastico — Nice childish comment.
@Gene
The Jan 6th patriots were in the right.
@Gene: having voters remorse? LOL!!!
@ Koggerj — There is nothing right about treason. It should be punished by execution.
@ Santastico — Not following how you reached that conclusion. Is that what Tucker Carlson said?
We started on out the pandemic with the instant eruption of armchair scientist and now we start out the endemic with many becoming armchair lawyers. I’m sure there will be no issues on planes if masks are now reinstated.
It seems as if the CDC is trying to ensure it has the power in the future to issue mandates.
I am not an attorney and I don’t know if they or if they can’t.
It seems that at least as of tonight because stuff moves very quickly they are not seeking a stay or reinstating of the mask mandate.
I do wonder if they wanted it re-instated how they would put the cat back in the bag, now that folks have not had to wear masks for approx 24 hours.
I do not know whether whether the graphs in
“The Failed Covid Policy of Mask Mandates” (you can google it)
but I will not be surprised.
The symbolism of mask wearing was captured in WSJ
“A Crime Scene Where the Victims Wore Masks”
… The politicians and bureaucrats who run almost all major cities, many states and the federal executive branch seem to care more about preserving the symbol of their authority that mask mandates represent than about the actual physical safety of citizens….
The same is true for the shoe control squad at the airports.
The science. follow the science. It’s all about the science. The science will set you free
“therapeutics are available and hospital ICU resources aren’t strained by Covid.”
In other words, who gives a blank if only 1,000 people or so are dying daily from a disease that could be significantly controlled if well known public health measures are implemented as long as our hospitals and morgues can handle it. This blog post does no justice to the issues at stake.
The CDC is the client. DOJ is the attorney. The attorney must review the basis for the decision, analyze the legal issues presented, and consult the client before filing an appeal. This is not the prior administration where the president tells the DOJ which cases to pursue and which ones to drop based purely on political considerations.
The CDC should appeal to settle the issue of the limits of its power to protect public health. This isn’t the last pandemic we will face and the current one is still far from over regardless of what some may think or hope. I know you have grown weary but suck it up ladies.
I’d be surprised if this is the first trial court decision in a case challenging a federal rule that was implemented in early 2021. The legal expert should enlighten us.
I guess it’s going to be a long time before the government drops the COVID-19 test requirement before flying back to United States?
“I guess you haven’t experienced a parent with dementia yet? ” I have. My father. And when I watch Biden, it is like seeing dad. The man is unfit for office.
The only aspect of this debacle that’s important is that the lawyers get lots and lots of work … doesn’t matter what they’re doing, they just need billable hours. Nobody in DC gives a fig about old people with underlying health issues getting sick, nobody cares if the world economy tanks, nobody cares about anything but power and making money. If you’re worried, wear a mask. Don’t spend time in crowds. Don’t fly on airplanes. But an intelligent, simplistic, responsible solution is not what DC wants. Control, baby, control. Let’s drag this out as long as we possibly can. Screw the public, they don’t matter. What does the public need to be able to grasp the truth of the last two years?
Just saw this in the mainstream media. First thought that comes to mind is that this proves MAGA-world is utterly wrong and unhinged.
What’s driving the administration is public good and not politics !!! All they could have done was to let the partisan FL judge’s ruling stand and they would have “won.” Why then extract defeat from the jaws of victory? That is for the MAGA-verse to explain!
You are CLEARLY not a lawyer. The decision is in no way consistent with anything, has been ridiculed as being legally and scientifically ridiculous by anyone who isn’t a Trump loving idiot. 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? Yeah – that’s really logical. No legal theory requires reading a statute in a patently absurd manner. Keep with the travel commentary and maybe leave the legal analysis to us lawyers.
Does anyone know if they will stop the covid test requirement for reentry soon?
@David — I fully your frustration !!!
…I SHARE your…
All the leftist snowflakes out there who fly are going to have to break ranks just this once and vote for the other side if you ever want to see COVID in the rear view mirror. For the left, it’s a true religion.
@Gary as stupid as it may be politically, there are actually other things that are potential motivations. Among them is the actual belief that masking measures (and other measures) will be necessary in the future genuinely for the sake of public health (whether one agrees with those measures or not), and a resulting desire to clarify that authority.
There is a world in which “we’ll appeal if the CDC says they want to” shows only political stupidity. There is also a world in which the administration is actually deferring to its public health officials to tell it whether they want to clarify the authority in the name of, you know, public health, and a willingness to go through with it even though it’s not politically advantageous.
@DCS
You’re a Brain dad defective liberal.
Woah! For MAGA-adherents that is a non-starter because it is pure heresy that challenges their their firm belief that politics trumps all. I think that the administration’s move to challenge the clearly partisan FL “judge’s” ruling has created a disorienting cognitive dissonance that is practically irreconcilable with MAGA-verse and its firm belief that the current administration is as driven by politics was the last…
I am getting the popcorn ready in anticipation of the contortions that are sure to follow this clear evidence that Biden may actually care more about public good than being reelected.
My sense is that Biden believes that doing the right thing for the people is both good policy and good politics, something that challenges MAGA-verse’s most basic world view, which is that politics ist alles…
@David
People like you are a cancer to this nation.
@Gene
I agree we should start with the Democrats.
@DMNYC BRAVO!
Agree with others, this analysis is missing the most important factor – they are appealing because they do not want this to set precedent. Ex what if in the fall a new, more lethal variant arises? I’d stick to the credit card pitches Gary.
How did a mandate that never required an effective mask ever protect people? How could it now when cases, hospitalizations and deaths in the U.S. are off by well over 90%? Never, even at the height of the catastrophe, did I ever face a requirement to wear a quality mask anywhere. When masks were in fact important, I did regularly put on a KN-95, did not complain about it, and encouraged others to do so too.
The problem with the restrictionists is that they have no off ramp. No matter what the state of the disease is, they will always think it’s not good enough to let go. “Not yet, it’s too soon, maybe never” is all they have to say when they’re asked for metrics on when they’d finally be OK with other people not wearing masks. (They themselves can wear a mask the rest of their lives for all I care.)
The CDC has established metrics by which it divides counties into green, yellow and red, but the same people who worship a CDC transportation mask mandate refuse to accept a CDC county metric that says masks are now unneeded almost everywhere in the country, and scream that we are evil for not wearing masks anyway, even though a county like mine is greener than Ireland after a soaking rain, and indeed would still be green by the CDC metrics if the infection rate rate were 10 times higher than it is now,
Everyone needs to get vaccinated, but I’m not willing to restrict my life anymore for the sake of those who refuse to do it and probably never will.