In April 2022 a federal district judge struck down the Biden administration’s transportation mask mandate. Did you realize that litigation over the mandate, though, was still ongoing?
The Biden administration never even sought a stay of the judge’s order eliminating the mask mandate. They got the mandate ended, without bearing responsibility and criticism, while being able to attack a Trump-appointed judge. But elements of the administration wanted to defend CDC prerogatives so they went to court anyway – even while no longer believing enough in the mandate itself to press for it to be continued.
The U.S. Court of Appeals for the Eleventh Circuit has issued a ruling dismissing the case as moot since the mandate no longer exists, the national emergency has been terminated, and the public health emergency has been allowed to expire. The court determined there is no longer a mandate that it could uphold if the administration were to prevail.
Congress could have imposed a mask mandate, and at the time the President’s party controlled both houses of Congress. They did not choose to do that. Instead, the administration relied on the same stretching of existing CDC authority under 42 U.S.C. § 264 that the Supreme Court ruled against in the eviction moratorium case.
The District court’s focus on Administrative Procedures Act issues in overturning the mandate were the weakest area of attack on the rule.
- 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.
Still I never bet against courts upholding government authority. However in this case, since the issue was moot, the court not only dismissed the appeal the district court’s decision was vacated as well. The Biden administration wins in that there’s no precedent on the books against a mask mandate, and there’s not another precedent on the books limiting CDC authority.
My original prediction, on the day the district court judge’s order vacated the mask mandate, was that (1) the Biden administration would appeal, and (2) the case would be dismissed as moot because the mask mandate would have expired before it was adjudicated. That’s ultimately what happened.
This means little to me. I continue to wear masks in public because I quit getting colds and other respiratory illnesses while wearing them. Others can do as they want.
Gary,
you are correct to note that the wheels of the appeal process would move so slowly as to render an appeal moot.
You are also correct in noting that appeals, including the Supremes, are failing to deal w/ the root of the reason for blocking administrative action in ensuring that precedents are set that disallow what is not permitted.
and third, the chances of a successful reimplementation of a mask mandate in the future is very low because there is growing evidence that it really didn’t accomplish what a lot of supporters of it said it would do; the “evidence” was all based on extrapolations of controlled environments to a general population doesn’t work when using a medical quality procedure which much of the population doesn’t know – or in the case of the US – want to comply with.
The US’ handling of covid on many levels was a disaster. There are far more practical, real world lessons than have been learned than there has been legal corrections to make sure the makes are not repeated.
Americans, as friendly as they are, can be stupid.
Masks prevent disease. Yelling at each other in a public space, unmasked, does not help.
1.4 million dead in the great USA.
People forget way too soon.
@Gary — Such nonsense. The “President’s party controlled both houses of Congress”, but the notion that it could have imposed a mask mandate but chose not to is laughably ridiculous because they would have had to avoid the filibuster in the Senate to be able to pass it by a simple majority, a laughable prospect with Sinema and Manchin who nuked their party’s own president’s much bigger and more substantive agenda.
@Gary — Such nonsense. The “President’s party controlled both houses of Congress”, but the notion that it could have imposed a mask mandate but chose not to is laughably ridiculous because they would have had to avoid the filibuster in the Senate to be able to pass it by a simple majority, a laughable prospect with Sinema and Manchin who nuked their party’s own president’s much bigger and more substantive agenda.
@Tim Dunn — The only time you make any sense is when you write about DL and airlines. I suggest you stick to doing that because the quote claim is MAGA ridiculous and has been scientifically debunked countless times…
I could not agree more… They refuse to wear masks and go around claiming that masks “really didn’t accomplish much”…Cahn’t make that stuff up!
DCS,
there is nothing political and a whole lot based on evidence that mask wearing by general populations did not accomplish much.
The US did not do a lot of things that other countries did including testing and making testing widely available at no cost. To argue that the reason for the US’ higher ratio of covid deaths was because of a resistance to mask wearing is simply illogical and false.
And there is evidence that trust in the US public health system is far below historic levels. If something like this happens again, the likelihood of people believing what is told to them will be far lower. That will take at least a generation to fix unless there is some real justification for what went wrong. Covid is essentially a non-story so the chances of changing mindsets is slim to none.
none of which changes that the US legally and procedurally did not fix what went wrong w/ covid – and that should be deeply disturbing because it just means we will repeat the same things again
Mask “wearing” by the general population didn’t accomplish much because so few people actually wore masks all the time. And once Omicron came around masks less than N95 were pretty much worthless as protection.
As for trust in the public health system–yes, it’s been trashed by the political manipulation by the Republicans. It’s the same thing we always see with epidemics–business sees the certain harm of taking precautions vs the possible harm of the disease and always chooses to avoid the certain harm until the disease has taken root.
As for saying Covid is not an issue anymore–an honest accounting puts it probably in 4th place in causes of death and note that everything above that is collections of causes, not specific causes. Note that many of these aren’t being reported as Covid but note the increases in deaths that can be triggered by clots. That’s Covid at work. Covid causes clots, clots can cause lasting damage or sudden death.
Loren,
if the common people won’t abide by government mandates, then it doesn’t matter who is not following them. If the public health system’s credibility is damaged, then it also doesn’t matter whether they are right or not.
and death rates in states that had less mask compliance was not necessarily higher when other factors are considered.
As much as you want to point fingers, these are real issues that have to be addressed sooner rather than later if we are to avoid a repeat.
and I am not saying and did not say that covid doesn’t exist any more. It is simply not a part of the political or even popular discussion any longer.
@Tim Dunn — I do clinical research for a living, and have been at it for 4 decades. I suggest again that you stick to commenting on DL and airlines, for which I, unlike your many detractors, have respect for your knowledge. Peddling MAGA conspiracy theories and quack science and sounding like disgraced and indicted “former guy” taints your contribution in areas in which you are legitimately knowledgeable.
G’day.
Two weeks to flatten the curve!
If one looks at the statistic, MORE people died of the Spanish Flu in 1918 than died of COVID! Look at the numbers! In 1918, the total population of the world was considerably less. Thus…a higher percentage of the population died in the Spanish flu crisis than in COVID. Additionally, “The Great (in his mind) Dr. Fauci admitted (much later in the COVID) that masks actually did little to prevent the spread of the disease. So whom are we supposed to believe? Of course, if you caught COVID and/or died of COVID, the percentage of death can be 100% for you.
“The unvaxxed face a winter of desth and destruction. ” Hilarious, all my unvaxxed flight crews still healthy as F. The weak can keep letting big daddy government stick needles in their arms and keep getting sicker. Natural selection at it’s finest.
None of this mask non-sense would have been necessary had the Government enacted a mandatory HQZ – The Hilton Quarantine Zones, in which everyone in the US would have been placed in any of the fine Hilton hotels across the country. If that were the case, everyone would have been put into guaranteed suite upgrades, would have been given the choice for either a hot daily breakfast in the hotel restaurant or the same delivered by masked room service employees.
Pools and fitness areas at these Hiltons would have been reserved for our best guests, the vaunted Lifetime Diamond members. Those members would receive additional benefits, not available to non-Lifetime Diamond members, such as special daily access to a male Hilton spa masseuse and sanitized Hilton Lifetime Diamond bath robes which would only be worn once then passed down to the Hilton Golds and Silvers.
Its funny how all the mask nazis and vax creeps are all now silent.
All the alarmists now want “forgiveness” .
The skeptic were proven right yet again.
Another aspect that went unmentioned in the case is the 10th Amendment implications – the mandate claimed jurisdiction over intrastate local transit.
@ Tim Dunn
“the “evidence” was all based on extrapolations of controlled environments to a general population”
No. Real world studies have established the benefits of masks (I have posted links to these on this website ad nauseam). It’s your choice to deny their existence to protect your factually erroneous narrative.
“the chances of a successful reimplementation of a mask mandate in the future is very low because there is growing evidence that it really didn’t accomplish what a lot of supporters of it said it would do”
According to the right wing covidiot politicians of the USA, who shamelessly went all out to discredit the medical and medical science workers at their task of addressing the challenges of a global pandemic and informing options for health policy. There’s a price to pay for such fundamental dereliction of political leadership that is pervasive and long lasting.
“much of the population doesn’t know – or in the case of the US – want to comply with.”
Absolutely. The US disgraced itself in its promulgation of ignorance and anti-medical science and non compliance and paid the price in terms of its COVID dead. That legacy is sadly enduring as evidenced by your very own enduring politically partisan covidiocy.
Remember, Tim, not all countries followed the US example.
Brilliant as you are on certain matters aviation-related, med / bioscience is clearly not your gig.
@ Tim Dunn says:
“if the common people won’t abide by government mandates…”
Don’t forget to add,Tim….especially when the political detractors of scientifically informed health policy wage a campaign of misinformation and distrust in the very health policy measures designed to protect the common people from the impacts of global pandemic…
Mandates were followed in other countries wherein largely bipartisan positions were adopted…;)
then it doesn’t matter who is not following them. If the public health system’s credibility is damaged, then it also doesn’t matter whether they are right or not.
and death rates in states that had less mask compliance was not necessarily higher when other factors are considered.
As much as you want to point fingers, these are real issues that have to be addressed sooner rather than later if we are to avoid a repeat.
and I am not saying and did not say that covid doesn’t exist any more. It is simply not a part of the political or even popular discussion any longer.
Sadly its my time to give up this blog. Have I lost my mind or did 1/2 the comments disappear including the one guy who got the virus “reaction” and the aftermath right. You DO want people to return again and again to read “controversial” commentary and be subject to your advertising, links and page views? This is not common sense?
@ Tim Dunn
“there is…a whole lot based on evidence that mask wearing by general populations did not accomplish much.”
Geez – let’s test that logic – obviously if there can be 5,250,000 vehicle collisions on US roads per year then we can confidently conclude that car brakes don’t accomplish much. Right?
At such a kindergarten level of reasoning, a scientist you would not make, my friend.
“To argue that the reason for the US’ higher ratio of covid deaths was because of a resistance to mask wearing is simply illogical and false.”
Geez – let’s test that logic – you recognise that the US handling of COVID was a disaster (you state such above) and yet you discount the potential role of mask wearing as part of health policy during a pandemic because you believe there is no evidence for the practical benefits for the real world application of masks (whereas that evidence does exist in the scientific / medical literature you just choose to deny it like certain other covidiots herein).
You are thereby forced to deny that COVID deaths could have been averted by mask wearing. You’re trapped in a logical circle of your own misinformation and misperception, dude.
Now if you had been a smart scientist you might have pointed out that it is hard to disentangle the impacts of multiple variables (in this case health policy measures and their respective compliance) in a real world application, particularly when those variables are co-dependent meaning simpleton ideas of linear relationships (in this case determination of the R number) probably do to apply.
“And there is evidence that trust in the US public health system is far below historic levels.”
Yep. But then you deny any political factor, conveniently denying the ongoing denigration of medicine / science by your previous right wing administration – an abject failure in leadership with generational cost. You recognise the cost but not a cause (perhaps because you are right wing and forced into denialism to protect your self-deluding political constructs).
@platy
You support the junk science behind the “transgender” misinformation. You have no right to talk about real science.
@Chad:
> Its funny how all the mask nazis and vax creeps are all now silent.
> All the alarmists now want “forgiveness” .
> The skeptic were proven right yet again.
You seem to regard shouting down your opponent as scientific victory. That’s not how it works. Your “victory” is a Covid death rate amongst Republicans that’s twice the rate amongst Democrats. It’s only shown up since the vaccine came out, it’s a matter of how people are behaving.
@Tim Dunn:
>if the common people won’t abide by government mandates, then it doesn’t matter who is not following them. If the public health system’s credibility is damaged, then it also doesn’t matter whether they are right or not.
>and death rates in states that had less mask compliance was not necessarily higher when other factors are considered.
As much as you want to point fingers, these are real issues that have to be addressed sooner rather than later if we are to avoid a repeat.
>and I am not saying and did not say that covid doesn’t exist any more. It is simply not a part of the political or even popular discussion any longer.
I do agree non-compliance made the mask mandates worthless. What I’m objecting to is taking that as evidence that masks don’t work. They clearly do work **if they are used reliably**. Most people don’t.
And while there has been an attempt to blame the disparate death rates on demographics that was already considered. Yes, Republicans average older than Democrats and thus have a higher death rate anyway–that was already considered. The change **after the vaccine came out** is due to behavior. Any underlying demographics were already in the data before the vaccine came out.
@ Chad
“You have no right to talk about real science.”
The good scientific folk at the world’s elite universities who have awarded me scholarships and research degrees in bioscience in a highly competitive environment would disagree with your assessment…;)