Justice Thomas Will Decide Whether To Halt The Airline Mask Mandate

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).

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. What part of “…..and other measures, as in his judgment…..” don’t you get?
    Luckily Thomas is reported to be the laziest and stupidest judge…..

  2. @ jorge

    Initially “is reported to be” is a red flag for weasel words.

    But the point, dumb ass, is that Congress cannot write a blank check to an agency, conferring it unlimited power. If you do not believe me, please recall that the CDC’s eviction ban has been deemed outside what the CDC thought to be its limitless power.

    What part of that don’t you get?

  3. What Jorge fails to his acknowledge in his very insightful comment is that in the previous case (the eviction ban), the court chose not to rule on the merits of the question of CDC’s power to take the measures it had taken due to the fact that the ban was expiring soon and the government had stated that it would not be renewed. Based on the majority opinion in that case, it seems that had they chosen to issue a ruling on the merits, it is all but certain that they would have ruled against the government. I suspect the same thing will play out here:

    1) The mask mandate is due to expire in September and is likely to not be extended;
    2) Thomas is likely not persuaded by the “irreparable harm” in this case to issue an injunction; and
    3) Thomas can deny an injunction and the court can still agree to hear the case in the next term, should the mandate be extended (assuming an appeals court rules for the government). The majority can then invalidate the ban through normal processes.

    It’s this last reason that makes me feel like this direct appeal for injunctive relief will be denied. It’s important to remember that a denial for an emergency injunction is not an indicator of how the court would/will rule on a case (and there are literally dozens of examples of this). I think the government knows they are on shaky ground with this one and that they have been granted wide latitude to navigate through an extraordinarily difficult time….this administration strikes me as too pragmatic to push their luck over something that is increasingly unpopular. We are entering a difficult election year in 2022, and nobody wants this issue creeping into congressional races.

  4. @jorge paez

    Coming from an entitled white male, I think your comment is RACIST!

  5. When there’s any meaningful level of controversy, justices never make these decisions alone. It’s standard practice to refer the matter to the full court for a decision. The “circuit justice” only rules solo if the matter is cut-and-dry, so nothing actually depends on which justice is assigned an emergency request like this.

  6. @Steve,

    I think you are 99% correct, save that a decision on injunctive relief involves some evaluation of the merits and therefore indicates something, but not everything, of the tribunal’s later decision on the merits.

    And I agree that this administration will let the current mandate expire rather than pressing its luck on its legality. And it is odd – the current mandate did little that the airlines were not already doing – I’ve always thought it was essentially a nothingburger. But the airlines may find a challenge enfrocing their preexisting rule if and when the expirartion of the federal mandate gets attention.

  7. Rather than a legal analysis by a *travel* blog, perhaps a better question to be asking here is this: what will the airlines do after the current mandate expires in September? They went for months requiring masks on their own – and going into the autumn with variants aplenty, cases rising and a large unvaccinated population in the US, how do they balance those who don’t want to wear a mask with those who are less inclined to fly without everyone wearing one?

  8. @ jfhscott

    The federal mandate was put in place at the request of the airlines and the FA unions. They wanted the cover of the federal government so that they could say “it’s not our policy, it’s the law”. They believed that this would take the heat of them and make passengers more likely to comply, since this was a “law” and not a “policy”. It had an added benefit in that it was one of the few areas that the new president – who ran on a “wear a mask” campaign could actually exert some authority. All in all, this probably made some sense back in January.

    Flash forward to April and the story changes. The airlines (mostly at the behest of their unions, but also their own bottom lines) begged for an extension. Vaccine rates were increasing and people were really starting to chafe at the continued mask requirements everywhere. The science for much of this was not sound (i.e. outdoor masking) and people were taking notice. The CDC was under pressure to level with the public. It’s very likely that the airlines realized that mask mandates were in trouble, and they still wanted that federal cover both to deflect blame but also to protect them in the event that guidance changed about masking requirements for the vaccinated.

    Then, three weeks after the extension was granted, the CDC threw a hand grenade at them by changing the mask guidance for vaccinated people indoors. Now, this guidance specifically exempted airplanes and transit in order to honor the recently-extended federal mandate, but it was pretty clear that the public would quickly start questioning the rationale since cabin air was supposed to so much cleaner/safer, and since most airports more resemble a huge shopping mall than a cramped hospital. It is in this environment of public scrutiny that the mask mandate serves its real, current purpose: to keep the airlines on equal footing and protect from a competitive advantage. The mandate is the only thing keeping at least some airlines from changing their mask policies. Once one or two of them do it, the rest will be forced to follow suit. In this vain, they are really no different than a cartel such as OPEC. They don’t trust each other, and they are looking to neutral “rules” to keep them in line, and the main reason is to preserve labor peace among the FAs that – for various reasons unrelated to actual covid safety – have demanded the masks stay on.

    This is why I strongly feel that current mandate will not be dropped and will not be extended. Dropping it now would make the government look weak and will anger a key labor constituency. Extending it angers the public, creates political pressure, and hits the bottom line as business travelers sit out air travel and nobody buys high-margin domestic F class seats. Regardless of what happens, this is no longer about science or safety but now entirely about politics and money.

  9. @ATLJono

    Come September, I think this changes from a mandate on all to an option for some. The current face covering policy is a farce, as 1 ply cotton masks that can be removed at will to eat or drink do absolutely nothing to combat an aerosolized virus. For people that are truly concerned about protecting themselves, they should (and will have to, after the mandate ends) focus on their own PPE strategy. Medical grade N95 masks are pretty effective at virus prevention for the wearer. Passengers with concerns should wear one properly for the duration of the flight, perhaps in conjunction with a face mask in some cases. This will provide far more protection to an individual than mandating everyone wear ill-fitting glittered costume masks on the plane. It would be wise for airlines to offer N95 masks free of charge (they aren’t exactly cheap) to any passenger that wants one once the mandate expires.

  10. Overturning a mask mandate does not seem to be an emergency. What is the harm the plaintiff is claiming? That he has to buy a mask or get a doctor to sign off on his disability that prevents him from wearing a mask? For apartments, landlords can claim real economic harm by not being able to evict non-paying tenants. Federal courts are reluctant to overrule laws or regulations where an actual financial harm or violation of a constitutional right. People who have been fined by the FAA may be able to get their fines eliminated, but only if the airline did not have a mask mandate. I would be surprised if this wasn’t dismissed for lack of standing.

  11. Jorge Paez’s comment is a fascinating example of a common behavioral quirk, which is that the less you know, the more you think you know everything.

    Here it would appear to a layman that the general language in the statute is plenty broad enough to cover mask mandates, or fuel-air bombs if that would reduce disease transmission. And yet this case made it all the way to the Supreme Court. A rational person would say “since that doesn’t make sense given what I know so far there must be something I don’t know at work here”. (and there is, which I will get to below).

    However studies show that the less you know the more likely you are to think you know everything about the subject. So Jorge declares that people who see an adjudicatable issue here don’t understand the issue and the judge is both lazy and stupid.

    A really fascinating example that Plato would have marveled over.

    Incidentally here is a description of one of the most basic principles of statutory interpretation:

    “ ejusdem generis, instructs that, “where general words follow an enumeration of specific items, the general words are read as applying only to other items akin to those specifically enumerated.”70 Thus, an exemption from arbitration for “contracts of employment of seamen, railroad employees, or any other class of workers engaged in … commerce” did not apply to the case of a salesperson at a consumer electronics store: only contracts for the employment of individuals who transported goods and materials were to be exempted.71 At times, however, discerning commonalities among particulars to guide interpretation of the general is not so straightforward.72”

  12. Your comments on children and covid are the worst. You have no public health or medical training to reassure families that it is safe for them and low risk in getting covid. Once again a bad post.

  13. Readers of this blog who end up posting their screeds here are no different from idiot you-know-who supporters—you all are being led by the nose by someone who just wants to manipulate you for their own profit. Left posts cr@p like this to rouse you up so he makes more money off of clicks. Lemmings, whether right or left.

  14. @Drdrew +1, considering long haulers, we have no idea what even a mild infection might cause in the future. Everyone should avoid getting Covid-19, period. We just do not know enough.

    @SeanNYC, the Lucas Wall “case made it all the way to the Supreme Court”. The plaintiff sought emergency injunctive relief from the Supreme Court. The case has not been heard yet in US District Court. It was only filed on June 7th. So the Wall case has not followed the normal judiciary path, at all! Maybe you should heed your advise about “common behavioral quirks”.

  15. Hypocritical politicians? *gasp*. Who’d a thunk? Dumb shit going on in Texas again? *double-gasp*

  16. Dammit. Wrong article. Dumb shit from me? *triple-gasp*. Too many tabs open.

  17. The delta variant is good at infecting kids Gary. Please get off your high horse and read up on the subject. Anecdotally I know of 10 children who got the delta variant in the second wave. All either in my complex or in my friends.
    Not even getting into the other lambda variant which seems to be taking over in South America

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