Is The Federal Airline Mask Rule Legal, And Does It Apply To Passengers On Aircraft?

In the latest Airlines Confidential podcast former Spirit Airlines CEO Ben Baldanza questions whether the CDC mask order actually applies to the time passengers spend on aircraft. That’s an odd take.

On the issue of an Executive Order, clearly I think what President Biden wanted to do was mandate mask wearing in lots of places but recognized that his authority was limited and could do it on federal grounds and in some other areas.

…I don’t know if that mandate is law on board an airplane. I know individual airlines have said you have to wear a mask or we’re not going to allow you to fly… I’m not sure that the mandate that came from President Biden extends to inside the airplane.

…But I also think that it gets to an airline’s requirement to really be clear about how to deal with these kind of conflicts. No one likes conflict especially on board an airplane… but use of the word law if it’s not law as opposed to it’s our policy or we require masks to be worn on the plane that’s better language than it’s the law I think. But it may be the law.

Now, let’s be clear. President Biden’s Executive Order didn’t mandate mask wearing. It instructed his administration to tackle the issue. The CDC then issued a regulation requiring masks on ‘conveyances’.

  • Conveyance includes an aircraft under 42 CFR 70.1

  • A ‘conveyance operator’ (airline) must require mask wearing “on board..for the duration of travel”

  • The airline must use “best efforts to ensure that any person…wears a mask when boarding, disembarking, and for the duration of travel.”

  • These best efforts include “instructing persons that Federal law requires wearing a mask on the conveyance and failure to comply constitutes a violation of Federal law”

The FAA and TSA probably lacked the authority to mandate masks so the Biden administration turned to the CDC.

Courts have ruled that the CDC’s power under 42 USC 264(a) is limited to actions similar to those laid out in the statute (in cases involving its eviction moratorium, but the same would apply to the transportation mask mandate). Lindsay Wiley, director of the Health Law and Policy program at American University’s law school in D.C., thinks this also invalidates the federal mask mandate.

So if Baldanza is actually arguing that the CDC’s mask order is not legal, there’s an argument in support of his position. But if he’s suggesting that the order doesn’t cover time spent on the aircraft itself (versus in the airport), or that flight attendants are incorrect to announce that wearing masks is federal law, that’s incorrect as well – both are clearly spelled out in the CDC order.

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. Most people don’t understand the difference between a law, a regulation, and an executive order. That’s really poor education and sloppy wording more than anything else, and if it is backed by federal power the difference is pretty thin on the ground (or in the air) anyway. Before taking a person up in my club’s sailplane federal regulations require them to be buckled in, which is a good thing. As a non-attorney I suppose the same “health and wellness” idea could arguably be used here, and it seems the government is lenient towards protecting the public health. (At least when it doesn’t involve big industries.) Back around 1900 Mary “Typhoid” Mallon was essentially imprisoned for decades on a hospital island because she was a carrier. Was it legal? Maybe, maybe not. The NY courts said yes and she never got out.

  2. Just another indication that masks on airplanes are short-lived.
    Spirit has every reason to lead the charge.

  3. Who cares if it’s a legal order. Just wear your mask for an hour or two and enjoy the trip. Until 95% of people are vaccinated we shouldn’t even be questioning it

  4. @Gus – “Who cares if it’s a legal order.”

    If someone sues over this, the courts will care if it’s legal.

    “Until 95% of people are vaccinated we shouldn’t even be questioning it”

    Yes, we should. We should be able to question everything our government and politicians do (about covid or anything else). This isn’t China or North Korea.

  5. I was on a flight last week, and I won’t say which one to not get the pilot under fire, but I laughed out loud because as we were about to take off, the pilot said this after announcements:

    “And folks, one more announcement–someone had to go and make a FEDERAL case about it, so NOW we have to wear masks when we board, disembark, for the duration, in the terminal, on the bus, basically everywhere, or we can all get a big fine…. look, the flight is only an hour, so I think we can all handle that, right…?” He just sounded so annoyed that it had to become this big federal issue when it was already a rule, and I busted out, perhaps a bit TOO hysterical. No one around me was laughing. Absolutely everyone had a mask on, and there weren’t any problems, but now the already-elongated announcements have become redundantly elongated. It’s getting ridiculous.

  6. @ Gus

    An hour or two is fine. But most of my travel is transAtlantic. That’s two-hour check-in at ORD. Eight hours flight and another hour, at least, to get outside at LHR. Add another hour on the way back.

    Try it sometime. Wear a mask around your house for twelve hours.

    I’ve been double vaxed. I’m on a plane where is air is clean. I’m fed up with this.

  7. @Airfarer

    Grow up. My wife is a teacher and is fully vaxxed. Been wearing a mask in a room with kids with no AC for months now. All day everyday. I wear mine most of the day at work.

    If you can’t handle having a mask on for 12 hours every once in awhile while sitting comfortably in an air conditioned space you probably aren’t up to international travel at all.

  8. Could someone who’s still all in on masks explain exactly what would suffice as enough data/science to make you question their effectiveness? How many more examples of masked mandated states spiking do we need? How many graphs showing free states dropping? How many more direct comparisons like Ft. Worth and Dallas? North and South Dakota? In terms of covid aerosol spread the mask is like using a chain link fence to keep out mosquitoes…….virtue signaling theater period.

  9. @ Bob Jones

    Where is your leftist tolerance? I guess that only applies to people who think like you do.

  10. Sorry but I doubt the CEO of Spirit airlines has ever had the best interest of his passengers at heart.

  11. If you are too fragile to sit with people not wearing masks, you are too fragile to travel. Please stay home until you get a grip, get vaccinated, or both.

    The legality of this rule is likely a question of Federal Administrative Law as codified in the Administrative Procedure Act. Administrative agencies like CDC and FAA cannot pass rules having the force of law without a delegation of authority by Congress, not by the President who can only control enforcement (or non-enforcement) of Federal law. I don’t see any arguable grant of authority under 42 USC 264(a), and I think if anybody challenges this mandate, and can get past standing requirements (which could be more tricky), it will be gone.

  12. @ Airfarer
    I routinely wear a mask for 16+ hours at work with only a half hour break in between double shifts. It isn’t the end of the world. Plenty of people with important jobs wear them all day and are sick of all you whiney folks who think it infringes on your freedoms

    All this freedumb crap is the reason half a million americans are dead. Blood is on your hands if you rejected science

  13. Hey Gus,

    Piss off with your scaredy-cat little cries.

    Read the linked NIH article. MASKS DO NOT WORK.

    If you are afraid of being out, wear a mask, goggles, a face shield, and gloves or stay home. Don’t try to tell other what they should do.

    I am so sick and tired of this nonsense.

  14. @1KBrad
    I hope you don’t have to watch anyone die of Covid it’s a lot less fun that not wearing a mask.

  15. Ben Baldanza is a Director at JetBlue. Why do you always refer to him as former Spirit CEO when it’s something he said you disagree with?

  16. On an international flight now where everyone has a negative test. Delta Mask Nazis in full force. Statistically, 10% of the passengers have had COVID and more than half are vaccinated. This is just beyond stupid. I am a COVID victim (‘survivor’ for all you hand wringers) myself, and vaccinated.

    And for all the claims of denying science, I assure you I am versed in science…actual, real, hard science. So for all you spouting follow the science, I challenge you to actually produce the science. I’ve never seen it and neither have you. So, as said earlier, Piss Off.

  17. Wow, Bob & Gus are completely brainwashed. Just because you can wear a face diaper for prolonged periods of time, doesn’t mean we can. All this hatred for a virus that has a 97+ % survival rate. Get off your soapbox & actually start thinking rationally . Hope you enjoyed reading Fauci the Fraud’s recently leaked emails…so much for “science.”

  18. Watching someone die of COVID is a piss poor argument. Was that person infected because he/she/(fill in the blank) did not wear a mask or because someone around them didn’t wear a mask? My bet is either you don’t know or no. The masks are clearly a control mechanism. The airlines already state that the circulation on planes is probably the best conditions except being outside. You don’t see people coming off a plane and getting the flu every year. There is a reason for that. So take your philosophy that one should just suck it up and wear a mask and keep it to yourself. Most people are sitting in the airport, on a plane, waiting for luggage and getting a rental car for far more than 1-2 hours. Your argument is weak and it’s overused. Masks suck and these damn airline employees are so brainwashed, they won’t STFU about wearing them.

  19. It comes down to whether it’s a LAW or not. When did Congress vote on it? Never.

    Statistically, the masks don’t work. Also, even in the beginning of the plandemic, flight attendants had a LOWER rate of infection than the general public. It’s not about protection; it’s about control. It’s a toe in the pool to gauge the next step; and if you don’t think it’s coming, you’re being willfully ignorant.

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