When a federal district court judge struck down the transportation mask mandate, the Biden administration had several options. For instance,
- They could have sought a stay of the ruling
- They could have asked airlines – whom they regulate, heavily – to keep the mask mandate in place, pending further adjudication (airlines generally would not dare to say no, knowing what’s good for them)
They didn’t do that. They accepted the ruling and announced they would not enforce the mandate. Airlines quickly lifted their own mask requirements.
There’s now been a lot of reporting saying the administration will appeal, but the statement from the administration actually defers to the CDC saying they’ll appeal if the CDC says this is necessary. That’s important.
- The Biden administration needed the mask mandate to end sometime this summer at the latest, heading into the midterm elections. They don’t want to represent ‘the party of continued restrictions’ but rather ‘the party that is restoring the country from the pandemic’.
- At the same time they didn’t want to be responsible for prematurely declaring victory, relaxing a restriction before cases rise (as they’re beginning to, though it is not at all clear towards what level). So they were in an awkward spot, remembering all to well the declaration of freedom from the pandemic last July 4th.
How they’re threading this is interesting. They can’t look weak! They disagree with the ruling, but they’ll defer to the CDC on whether the mandate is still needed to determine if they appeal. They also don’t want to lose on appeal, this district court ruling will have little precedential value. And the Supreme Court signaled strongly in last summer’s Alabama Association of Realtors v. HHS that the CDC’s authorizing statute should be read narrowly.
Could this statement be any more . . .
1.CDC already said the mandate was necessary for 'two more weeks' which is why it didn't expire on its own this week.
2.CDC order was overturned, people are flying unmasked, and the administration hasn't asked CDC yet if that's concerning? https://t.co/bHdLZ5ZzpO
— gary leff (@garyleff) April 19, 2022
The Administration certainly had every ability to get the CDC’s point of view on this. But they’re deferring to the agency, ‘being guided by the science’, even though the agency had already spoken.
The agency can now say that the mandate isn’t necessary, so they’re not weak for not fighting the ruling. And the mask requirement was lifted by the court, so they don’t look bad as cases rise.
That’s a charitable read of the Administration which treats them as competent political actors, navigating a difficult electoral environment. If they do decide to appeal, having not sought a stay and having allowed the mandate to lapse, then they’ll have just massively bungled this.
Because allowing the country to fly maskless for a few days, and re-imposing mask rules after that when cases are still very low by standards of the past six months (though rising), hospitalizations at their lowest level of the pandemic, and better treatments not just approved but available then creates two problems,
- Trying to get compliance in the midst of confusion and industry opposition, while appearing inept – the President himself said on Tuesday’s it’s up to travelers if they wear a mask when they travel or not.
- Being unable to articulate an off ramp, if masking in planes but not bars makes sense now when we’re not trying to ‘protect hospital capacity’ or ‘delay infection until we have treatments and vaccines’ then what’s the point at which an end to masking rules is possible?
The smart political move is to let the CDC say they’ve examined hospitalization data and the state of new variants and the mask rule can expire, subject to new developments that might warrant its reinstatement. And the people in charge at the White House aren’t dumb.