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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.