Federal Judge Upholds Transportation Mask Mandate

A federal judge for the Middle District of Florida in Orlando upheld the federal transportation mask mandate on Friday, ruling that it’s within the power of the Centers for Disease Control.

This comes less than two weeks after another district judge in Florida ruled that the mandate fell outside the CDC’s statutory authority, and that it also violated the Administrative Procedures Act in promulgating it.

The April 18th ruling vacated the mask mandate. The Biden administration did not seek to stay that decision pending an appeal, so the mandate is no longer in place. This new ruling then, from another district court judge, has no real effect. It also does not appear to be a serious decision. What this district court judge does, though, is muddy the waters by allowing proponents of the rule to say that there are ‘conflicting decisions’ from the courts on the subject of the CDC’s authority.

The most important precedent interpreting the CDC’s statutory authority during a pandemic is last summer’s Supreme Court decision in Alabama Association of Realtor’s vs. HHS. This judge dismisses it in a mere two sentences.

Unlike the CDC’s moratorium on eviction, which obviously placed a large financial burden on landlords, the masking and testing requirements place negligible financial burdens on travelers. Ala. Ass’n of Realtors, 141 S. Ct. at 2489. In fact, the CDC correctly pointed out that the FTMM helps prevent the imposition of economic burdens by stymying the spread of COVID-19 and, consequently, avoiding future lockdowns and resulting losses.

The Supreme Court wasn’t buying that the eviction moratorium “helps prevent the imposition of economic burdens by stymying the spread of COVID-19.” And the analysis is largely irrelevant.

  • The Court’s decision was about the extent of the CDC’s power granted by its authorizing statute (which the Court said must be construed narrowly).

  • That narrow interpretation wasn’t contingent on the economic effect of a rule

  • And the judge here doesn’t even attempt to consider whether the cost of masks for 700 million travelers would be considered de minimis, the non-sequitur of the analysis notwithstanding.

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 they had not limited CDC power, it would have run afoul of the non-delegation doctrine – Congress is unable to grant an agency the ability to legislate its own authority.

The mask mandate case isn’t as simple as just applying Alabama Association of Realtors, the judge properly goes through an analysis of whether a mask mandate is disinfection or an inspection, and he implausibly claims it’s both.

This judge gives Chevron deference to the CDC – the CDC as expert knows best – but it’s improper to extend deference to the question of the extent of its own authority (which is for Congress) as opposed to its interpretation of an ambiguous statute where its authority to act in some manner is clear. Even those justices in the minority upholding the OSHA vaccine mandate in NFIB v. OSHA did not invoke Chevron deference in its defense. It’s simply inapposite.

Ultimately the Biden administration should have sought the authority it wanted from Congress (both houses of which were controlled by the President’s party!) but chose instead to issue administrative decrees of dubious legality. Since the mask mandate is not currently in effect, and the CDC is unlikely to extend it, it seems low probability that the Supreme Court will ultimately rule on the question – though they largely settled it last summer striking down the CDC’s exercise of power based on a stretch of its authorizing statute in Alabama Association of Realtors.

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. Biden has moved on to sending billions to some third world dump country that is at war because he former boss decided to stage a soft coup in 2014.

  2. The Biden Admin. will still fight the case because this President (and his immediate predecessors) prefer to rule by executive (royal?) decree rather than work legislation through a divided Congress.

    If there is a circuit conflict (these cases admittedly within the same circuit) then maybe SCOTUS will take the case and use it to strike down Chevron deference, which is at the top of Gorsuch’s list.

    But otherwise the outcome won’t matter, the government has declared the pandemic is over (despite thousands still dying every week) because elections are forthcoming

  3. Just more legal jibberish to muddy up the waters. The masks are gone off airplanes, and NO ONE is going to put them back on just because Biden, little Mayor Pete, Fauci, or the CDC say so. They have lost all credibility with the public and masking on airplanes is now an individual personal decision based on your own risk assessment.

  4. The CDC and Fauci are worthless now. The CDC can’t even update their website on pertinent information that the general public should have. And Fauci is constantly going back and forth with the virus status. I don’t see masks ever coming back as a mandate. People should just do what they feel is best for them. I’m sure lots of people died back 2 years ago when the things the CDC should have said wasn’t said….like don’t wear masks (regardless of why) they killed people.

  5. Guess the judge had nothing better to do and wanted their name in the paper/social media/bored housewives gossip circle etc.

  6. Utter incompetence.

    “Large financial burden” is not the test for whether a mandate is inside or outside the CDC’s authority. Prime example of legislating from the bench.

    If the CDC can do anything, as long as they’re not imposing a “large financial burden”, what’s to stop them from requiring everyone to wear their clothes inside-out and sing the Barney theme song five times a day?

  7. Yet another excuse for wasting time and money. Do these people have no shame? Get off your butts and go do something USEFUL for the people who pay your ridiculous salaries and inflated expenses. Americans are sick of it.

  8. Police departments are overrun with law abiding citizens turning in their “ghost” guns. These same folks are flooding Walgreens to buy out paper masks from china so they can fly to Hawaii next week.

  9. Gary, are you a lawyer? I ask because there are some assertions about the law in this that strike me as dubious or contested.

  10. The original ruling by one person should’ve never occurred in the first place. This govt is one of the dumbest in the world. One supervisor judge should not be able to make a “ruling” on a national issue.

  11. Señor Leff is not a lawyer, but that is not the point. More relevant is this: his assertions about the legal situation are done to defend the ruling from the Trump judge who dismissed the mask mandate rather than any respect for long-standing legal precedence and practice.

  12. Trump & Co = “Biden Terrorist Organization” and/or “American Terrorist Organization”.

    Good Americans can only hope that Trump & Co keep losing.

  13. @GU wonder..

    If you think “Good Americans” favor Biden then I hope the “good” americans lose bigly. I’m sick of all these Biden-zealots with their virtue signaling.

    Let me guess – you think Biden starting up the Ministry of Truth led some leftist wacko was just a coincidence with Elon buying up Twitter?

    If you want to wear your mask, you can keep your mask – but stop trying to control our lives while you are brainwashed by fear

  14. Ah the poor little babies are out again. Masks are easy. If you have a problem with them, you’re just a difficult asshole. Simple as that. The executive branch’s power to impose mandates comes from SC decisions over 100 years ago

  15. “Masks are easy.”

    Yes, they are, for someone who is complicit and lacks the strength to stand up to a draconian, authoritarian directive. In this case, I prefer the asshole over the maskhole.

  16. Oh please, get over yourself. You have to wear pants, too. Sorry about the oppressive pants regime. Life surely is tough and unfair

  17. “You have to wear pants, too.”

    Just what we’ve come to expect from people attempting to justify their complicity and weakness in the face of authority.

  18. It’s time to move on as my 75 year old mother and 73 year old father informed me that their first flight ( packed and full) since December 2019- was 100 percent maskless amongst passengers flying San Diego to Newark this past Thursday!! I was surprised but hey people are not going to want to be forced to mask forever on planes or the airport . Clearly the polls were wrong and majority of people only wore masks to follow the rules , as the polls are never truly accurate as people want to answer what they think is morally and ethically correct.

  19. “…and majority of people only wore masks to follow the rules…”

    Absolutely correct and perfectly illustrates the problem when the great masses of people fail to recognize the importance of questioning and ignoring arbitrary and ridiculous edicts.

  20. It appears Gary has more legal experience than the Florida judge who ended the mandate.

  21. So enjoyable to hear the panties-wetting squealing from mask clowns like @GUWonder and @bhcompy. Even more enjoyable to know that if you travel by air you do so angry and afraid and when I travel by air I do so ecstatically.

    Masks are never coming back you utter buffoons.

    I bathe in your tears…

  22. “… one of the foremost experts in the field of miles, points…”

    But the law?


    Better stay in your CLEAR lane Gary

  23. WOW! Got some mean personal attacks going on here. Y’all might want to play nice as what you write says more about you than the person it’s attempting to disparage.
    So here’s my question. Since I’m one of the “unwashed” (no Covid vax, just a strong immune system) should I place a sign in the center seat on my SWA flight? A vacant center seat is treasured on SWA but of course, out of an abundance of caution, I would be doing it for “others” . . . kinda like wearing a mask.

  24. @Magnifico I’m not angry, I sleep peacefully knowing I won’t get sick and you’ll suffer. Bathe in those tears, MAGAT

  25. Of course the fake president wants the ridiculous mask mandate and the scamdemic to continue forever,[or at least long enough to steal elections in the midterms] … see 2020 presidential election for example ]…. those with a brain to think can see right through all the lies being perpetrated by those in charge right now, free people have had enough .

  26. Make believe legal analysis and then the political comments…only on the “View From the Wing”!

  27. Clown Magnifico,

    I’ve happily traveled hundreds of thousands of miles on flights during this pandemic; including on many flights this year without any mask requirement.

    The scared little patsies are those who are still paranoid about “foreign terrorists” and cry about “freedom” when it comes to masks to travel and yet have long been supporters of so much TSA security nonsense during the past two decades.

  28. And yet GUWonder, despite your widdle tantrum here, masks are never coming back.

    Try not to soil yourself this time when responding…

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