Last month I covered the passenger lawsuit to overturn the federal transportation mask mandate. Some of the arguments in the suit are legally persuasive, but included a lot of unpersuasive claims as well. I expected that the suit would be made moot by the expiration (and non-renewal) of the mask mandate on September 13, 2021 – before the case gets adjudicated.
However a couple of things have happened since then.
- First, the Supreme Court found persuasive that the CDC exceeded its authority in prohibiting tenant evictions. The same arguments over the CDC’s statutory authority, on which the TSA mask mandate is based, apply here as well.
- Second, the passenger suing to overturn the mask mandate sought emergency injunctive relief from the Supreme Court.
The Supreme Court has docketed the request for injunction and assigned it to Justice Thomas. He will determine whether to halt enforcement of the federal transportation mask mandate pending further adjudication of the case.
Justice Thomas seems reasonably likely to be persuaded on the merits by the legal argument that the CDC’s statutory authority 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” is limited by the kinds of activities specified in the statute,
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.
And that any reading of CDC authority that isn’t so-limited would run into non-delegation issues (that Congress cannot write a blank check to an agency).
However – and many readers will be more knowledgeable on such matters than I am – under Winter v. Natural Resources Defense Council I have a hard time imagining plaintiff Lucas Wall showing the probability of of irreparable harm without an injunction (that he has to wait until September to travel, if the government were to suggest they don’t see the current rule being extended) and that even if he showed irreparable harm that still has to be weighed against the public interest in the rule.
As a result I will be surprised if Wall prevails and obtains injunctive relief, or even goes to the full court – let alone that such relief would be nationwide rather than narrowly tailored to the plaintiff (and others similarly who are similarly situated).
With the CDC advising that vaccinated individuals need not wear masks indoors, and mRNA vaccines continuing to show strong efficacy against current variants of the virus, transmission risk is mainly focused among the unvaccinated. And anyone 12 and older at this point can get vaccinated. The question for continued imposition of a federal requirement to wear a mask at this point is whether need to slow down for these people who choose not to get vaccinated, and might infect others who choose not to get vaccinated?
Children under 12 can’t get vaccinated yet, of course, but they’re at statistically lower risk from Covid-19 than vaccinated older Americans are (indeed a child aged 1-4 is 10 times more likely to die of homocide or cancer than from Covid-19).