Federal Government Seeks Authority To Impose Airline Mask Mandates, Court Date Set For January 16th

A lot of federal pandemic rules relied on executive action rather than legislation. Rather than passing laws giving authority to the President, administrations took aggressive readings of existing authority. That was the case with the federal eviction moratorium (overturned by the Supreme Court), employer vaccine mandate (overturned by the Supreme Court) and federal transportation mask mandate (overturned by a federal district court).

In our polarized society Congress doesn’t legislate very much anymore, though it continues to appropriate. Instead of seeking more authority for the Centers for Disease Control to issue pandemic-era regulations, the Biden administration relied on the same stretching of existing CDC authority under 42 U.S.C. § 264 that the Supreme Court ruled against last summer.

When a federal judge overturned the transportation mask mandate, they basically took the Biden administration off the hook.

  • There was little patience left for a mask mandate, and wasn’t appearing to do much good in any case. Airlines themselves were calling for it to be lifted, and the Senate voted to lift it. The rule was the source of much rancor in the skies.

  • However lifting the mandate risked having the administration blamed (unfairly) for future virus spread.

  • Letting a federal judge rule against it – one appointed by President Trump, no less – was the best of all possible worlds. It allowed the Biden administration to end the mandate, without being blamed for deciding to do so. And it even let them rail against a political decision by an unfriendly judge, almost always a winning card to play.

The Biden administration declared that they would stop enforcing the mask mandate. They said they’d appeal… if the CDC said it was important to do so. They swung at a pitch in the dirt, because the CDC then said it was necessary to defend a broad scope for their authority. This put the Biden administration in the position of having to pursue a mandate in court that they themselves no longer wanted to enforce. (Their own pollsters were telling them the mandate would hurt them in the midterms.)

It was clear the Biden administration didn’t want to re-impose the mask mandate, and were happy to see the obligation to take action to eliminate it lifted off of its shoulders. Even when they appealed they did not seek to stay the district judge’s ruling, or seek expedited review in any form or fashion. Instead they were happy to have the wheels of justice grind slowly.

In fact, did you even remember that this case was still live – and that the Biden administration was still looking for the courts to bless its authority to impose a transportation mask mandate? The date for oral argument has been set: January 16, 2023.

When the administration filed its appeal I wrote that the mandate wouldn’t return and I stand by that – even though oral arguments will come after the midterm elections.

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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  1. Imagine being the appeals judges who reverse it and, presumably reinstate the ban! No judge is going to do that. Even though judges aren’t supposed to be politicians. Of course, judges are the biggest politicians out there.

  2. Just looking ahead for authority in the next pandemic. But it would have to be pretty bad to try this again.

  3. Gary – I assume you know this doesn’t mean the mask mandate will be reimposed. The CDC just wants to win so they don’t have their authority weakened. They will likely lose BTW based on the SCOTUS rulings you documented.

    Happens all the time and makes strange bedfellows. You see the Biden administration arguing in support of a Trump position on executive privilege. They don’t agree w what Trump did just don’t want authority reduced for future situations

  4. Dumb headline.

    This has nothing to do masks as this point. It’s about precedent and executive branch authority.

    But Gary’s gotta get those clicks.

  5. They’re appealing it because the ruling essentially bars CDC from issuing any future public health requirements in this manner (masks or otherwise).

  6. FJB
    …in the ass
    …with an unusually large cactus
    …along with anyone dumb enough to still support that traitorous P.O.S.

  7. I hope the CDC wins – when the next pandemic is worse than COVID was, the Federal Government will need the authority to impose mask mandates in public spaces – even if Trump, DeSantis, or someone else is the President at the time.

  8. @Tom

    I hope the Kool-Aid at least tasted good…. *rolleyes*

    Maybe you should move to China. You would have a rather impressive social credit score….

  9. Of course they want the authority to impose these type of draconian measures. It’s much easier to advance your fraud if it appears everyone is buying into it, i.e. wearing a face diaper.

  10. I would much prefer the administration do more work to show transmission methods and have more of a science-based approach. The CDC came into this with the idea that surfaces was a big source of transmission because no one had done follow-up research on airborne transmission with appropriate particle sizes. The US continued to allow cloth masks long after it was clear that they weren’t effective. Mitigation measures such as improved ventilation never made it into alternatives to masking. In the mean time, the world is just as vulnerable to an airborne infection as it was at the beginning of the pandemic. I haven’t heard of mask stockpiles, let alone N95 mask stockpiles. I haven’t heard of improved ventilation standards, even if they would only apply during some future pandemic. Instead, we get new vaccines and Paxlovid. We don’t have improved surveillance or ability to manufacturer tests.

    It’s hard to get funding for capabilities like the above. But, without spending the political capital, we won’t be any more ready for the next pandemic. I suspect the FJB crowd will be perfectly happy to avoid protection measures in the next pandemic, even if it is more deadly, just so they can own the libs, until they die. And part of this was enforcing an inadequate standard of masking and testing. I hope the CDC is able to maintain sufficient authority to support adequate preventative measures, but that they also have scientifically supportable preventative measures.

  11. Anything the feds can do to avoid any real work is always on the agenda.
    Lawyers have mortgages and Mercedes’ lease payments too.

  12. Just reminds me how dumb the US is!

    Life expectancy in the US during COVID has dropped the most of ALL rich western countries (and is continuing to drop) and Americans are STILL dying of COVID at a rate exceeding 150,000/year, but the Government has to waste time and resources to go to court for the authority to implement one of the most medically and peer-reviewed proven methods to slow down and ultimate reduce the ravages of a pandemic?

    Totally wrong priorities.

  13. Alan,Chris,Steve right on–You get it… Of course the admin is waiting till after the mid-term elections and to hope by Jan the votes will all be counted???

  14. They want the authority for the future in case of further issues. Even if they get it tomorrow, the mask mandates have long since expired. Recall they were adding 30-60 days at a time back then. The last one expired months ago.

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