Despite Appeal Of Court Ruling, 6 Reasons The Air Travel Mask Mandate Won’t Return

A federal judge overturned the Biden administration’s federal transportation mask mandate. The TSA said they’d stop enforcing it. Then the DOJ signaled a willingness to appeal the court ruling if the CDC said this was necessary. The CDC swung at a pitch in the dirt and sent out a press release saying it was necessary. And the Justice Department has begun it’s slow-walk of a half-hearted defense of the rule.

The Department of Justice filed a notice of appeal with the District Court. (HT: Andrew B.) Here’s the entirety of the filing:

There are (6) reasons that this will not lead to re-imposition of a mask mandate.

  1. The administration isn’t actually trying to re-impose the mandate. Where’s the request for a stay pending this appeal? Where’s the request for a higher court to stay the district’s court’s order? Where’s the emergency appeal itself? This effort to overturn the vacating of the transportation mask mandate is half-hearted at best.

  2. The administration was half-hearted about extending the mandate to begin with. They extended it one month and then two weeks in their last two extensions, and was conflicted over whether to do so each time.

  3. There’s a good change the administration loses on appeal if this reaches a decision on the merits. The Supreme Court’s analysis in Alabama Association of Realtors vs. HHS last summer overturning the CDC’s eviction moratorium clearly rejected a broad reading of the CDC’s authorizing statute. The continued inability of the CDC to articulate the standards they’re using to extend the mandate, and what criteria would lead them to allow it to lapse, provide further support to the Administrative Procedures Act arguments against the rule.

  4. Court of Appeals will be friendly to the mask challenge. For those of you who think ideology drives decisions, note that active judges on the 11th Circuit Court of Appeals are stacked nearly 2-1 with Republican appointees.

  5. The administration benefits by having the rule end, and blaming a Trump-appointed judge they need it to end eventually but don’t bear the political risk of having made the decision themselves and then being (unfairly blamed) as cases rise. They are better off not enforcing the mandate again.

  6. They already bungled this and actually re-imposing the mandate would bungle it further. if they wanted to keep the mandate in place, they would have acted immediately to do so. Instead they offered guidance to airlines that it was ok to lift the mandate. They did not even ask airlines to keep it in place as an interim measure. President Biden even said that mask-wearing is now an individual choice. Re-imposing a mandate now would lead to confusion, and place flight attendants charged with enforcing the rule in an untenable position, as airlines themselves even oppose the mandate at this point.

The order only runs through May 3. It seems like the most likely scenario is that it’s simply allowed to lapse, mooting the issue. There’s little precedential value in the district court decision – that was in the process of being appealed.

There’s little upside to winning an appeal that the Administration even said would only be filed if the CDC said it was necessary, they were lukewarm about appealing and took time to even say that. The CDC put out a press release that they believed it was necessary, but that release opened talking about defending its authority rather than opening with claims about the important public health goals involved. And when mentioning those, it went into no details whatsoever and offered it almost as an afterthought.

The transportation mask mandate will not be re-imposed unless there is a fundamental shift in the conditions of the pandemic. And though cases are rising (this began before the mask mandate was overturned, and the mask mandate was doing little to limit this) a fundamental shift doesn’t seem like the base case in a world where we have vaccines, therapeutics, and substantial background immunity from prior infection which limit- but do not eliminate – bad outcomes.

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, 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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  1. If it really is important, why not amend the law to clearly give this power to the CDC or whoever they think should have it?

  2. Well the democrat controlled congress and senate and presidency could make a law – but why make a law when you can just force your unelected agencies to create rules. We wouldn’t want to be too democratic around here.

  3. Well written and spot on. An upper hand on A Supreme Court pick in about four years! Then heads can explode again.

  4. Well Gary I hope that you are correct. I think you might be giving the incompetent Joke Biden clown car administration too much credit in their political strategy. These people are government control freaks, who are obsessed with obtaining and holding power. They are tyrants who worship at altar of federal government control over the lives of “We the little people.”
    They have demonstrated throughout this pandemic that they are elitists who follow the code of “rules for thee, but not for me!”

  5. Jerry – There is nothing “democratic” about the America ruining socialist DemocRatic party – every one of these DemocRats belongs in prison – traitors all.

  6. I agree with Nun but don’t see how this Congress can agree on anything where a federal agency gets more power, especially in such a charged issue. In any case, I put this letter on the White House “contact” page. One such message will be brushed off, but if enough people do it eventually they will have to notice: Maybe this is a good time to keep trying.

    Mr. President, now that the transportation mask mandate has ended, please drop the pre-entry COVID testing requirement as well. Unless hard data exists there is no evidence that it ever stopped a variant. And since it only applies to air travel and is not used for crossing the border by land or sea that defeats this purpose too. Also, apparently some resorts just print results without testing so it is of questionable value. In the end we have a meaningless exercise that costs the public money and interferes with international trade and travel. It’s like a having a dam across a dead flat lake, a structure which does nothing. It is time to repeal this rule.

  7. They (DC & CDC) see this as a loss because someone else stopped the mandate.
    If they (DC & CDC) had announced it even one second before the court, did, they would be yelling, “Look what we did for you! Aren’t we great!”.

  8. Gary – I actually think that this is to see where the limits of the CDC’s authority is. The mask mandate as it was, is dead. I don’t see a useful way in which this could be brought back into effect that people would follow, so it is functionally dead. The question as to what extent the CDC can issue these directives hasn’t been adjudicated and needs to be. The limits of the CDC’s authority needs to be defined and since the legislative branch is too lost in playing games with politics, their impotency pushes this to the courts. Outside of answering the CDC authority question, there isn’t much of a reason to defend the mandate itself in court.

  9. I think CDC play here is to have court of appeals dismiss case as moot (because by the time it would be decided current regulation would lapse), and quash initial district court ruling because of Munsingwear

  10. @BSOD – agree completely. This isn’t about the mask mandate but to defend CDC authority for the future. Same reason an administration will come tune to defend lawsuits on Presidential privilege started by a prior admin I of the other party. They want to defend against general erosion of the authority

  11. A comment made elsewhere summed it up best – this administration (and the previous one) has voluntarily given up none of their attempted power grabs – it’s been up to the courts to strike down attempted expansions of the administrative state. Everyone should be grateful for the current orientation of the courts – without them striking these grabs down, which the liberal members of the court would not have done, the power to rule by administrative fiat by declaring a “health emergency” would have been virtually unlimited. You might like that when your side is in charge, but eventually that gun is going to be held by the other side, so no one should ever want that.

  12. Wow I am so impressed with these comments-They are usually anti-Trump and totally left sided…they is a nice change esp the Brain-Dead -Biden comments..Some of you get it finally!

  13. People, this all started with FDR and will continue until there is no reason to. Really very simple. Look at history, its all there and why do you think America is any different. Cynical – yes. Realistic – yes again.

  14. It took awhile Dee but people even on the other side are starting to understand the damage that Biden is doing and will do to this country. A weak president dies none of us any good!

  15. Appealing the district court could backfire in one of two ways
    1. The appeals court could throw the case out because the appeal took place after the CDC’s intended date to drop it OR
    2. The appeals court rules that the CDC didn’t have the authority and the case goes up to the Supreme Court that finds the same thing.

    Either way, the changes are high that, even if the Administration’s goal is to preserve the right for the CDC to impose masking and other strategies in the future, they might not be able to get a court or scenario to test the case. If so, the district court ruling would stand as a precedent for future cases.

    And, ultimately the case is about whether elected representatives are willing to put their names on votes to do the kinds of things the administration did. Now that covid is not an issue for most anymore, the opportunity to figure out how to do it right next time will likely be lost.

  16. @ John. Regarding your poll: I just took a poll here at my kitchen bar . . . 100% says you’re wrong. I trust my poll more than MSM.

  17. I have seen the NORC poll quoted, but nothing on the actual question asked, which can change the outcome quite a bit. Also, asking a question like that of the general public is actually irrelevant – it’s what people affected by the mandate, actual travelers and workers think, that counts. People tend to favor regulations that don’t affect them, why not, no cost to them.

    I just flew two segments last night on full planes, and I doubt the number of people actually on the plane or in the airport voluntarily wearing masks exceeded 15-20%. Few TSA, ground personnel or flight attendants were wearing them. 16 and 20 first class seats, three maybe four people on each flight in first class with masks on. And the percentage in the terminals was even lower. But I saw a bunch of happy flight attendants smiling from ear to ear, chatting with passengers up close, providing great service, acting like things were back to normal. Everyone was way more relaxed, the change from the outbound flights was palpable. So, anecdotally, there’s no way that 50% of the travelling public or workers support the mask mandate.

  18. Regarding NORC, I was part of their survey groups during the election, until I started questioning the wording of their questions and gave the “wrong” answers in two different surveys. Funny then shortly thereafter I wasn’t part of their club anymore. Like all surveys, both sides pick and choose the answer they want.

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