A passenger has filed a lawsuit to strike down the federal mask mandate and the CDC requirement for a negative Covid-19 test when entering the country by air in the U.S. District Court for the Middle District of Florida. (Here’s a copy of the complaint as a .pdf.)
The issues are interesting ones, but Lucas Wall who is a “former transportation reporter and editor who has flown more than 1.5 million miles” is proceeding pro se as his own attorney and raises a number of claims that seem to be substantially less persuasive than his best arguments. I’m not sure he’s the best person to litigate this, though I suspect a well-funded and well-represented person in his position might do quite well.
Denied Boarding Without A Mask Despite A Medical Reason Not To Wear One
Mr. Wall says that he suffers from Generalized Anxiety Disorder and reports that this “causes him hyperventiliation and panick attacks” when he wears a mask. He submitted a request for an exemption from the mask requirement to Southwest Airlines (a process required by the federal mask mandate, but that wasn’t available when mask requirements were imposed by the airlines themselves) and this was denied for his June to trip from Orlando to Fort Lauderdale.
I have no knowledge of the specific medical condition of Mr. Wall and so I don’t express an opinion on the validity of his request for exemption. However absent a mask requirement he would have been allowed through the TSA checkpoint and been able to fly.
He might not have been allowed to fly Southwest (which didn’t even honor medical exemptions prior to the federal mandate) however we do not know which airlines would have lifted their mandates already if allowed to do so (their current lobbying in favor of a mandate notwithstanding) and airline policies on masks did vary before the mandate for instance Delta allowed exemptions after consultations with a medical professional they designated and allowed exemptions for young children as well.
Trying To Overturn The Testing Requirement For Air Travel To The U.S.
Wall also wants an injunction against the air travel Covid-19 testing requirement for travel to the U.S. He has a flight back to the U.S. at the end of June (he has not yet left the country). If he isn’t able to travel on his outbound flight due to the mask requirement, he won’t face the return testing requirement. I’d be interested to hear from subject matter experts among readers on the standing issue here.
Good – And Less Good – Arguments Against The Mask Mandate
Wall raises “21 counts of violating the Constitution, laws, and regulations” and isn’t just suing the CDC he also argues that the aviation authority which manages the Orlando airport shouldn’t be able to enforce the mask mandate due to Florida’s prohibition on government agencies requiring masks (although federal law would seem to trump here, and the court’s 10th amendment jurisprudence isn’t likely to be favorable here).
There are actually good level arguments against the federal mask mandate. It was clear that the TSA on its own could not require masks in air travel. That’s why the Biden administration’s CDC promulgated a mask requirement, which was then implemented by TSA. The legality of the mask rule relies 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 granting the CDC its power specifies examples of what may be required. The power is not unlimited: “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.”
The strong legal argument here is that in giving examples of what the CDC may do, Congress limited the CDC’s power and ‘other measures’ must be similar in kind to those listed in the statute.
And it’s actually a double-bind, because if a court finds that this isn’t the case then Congress’ delegation of authority is overbroad (running afoul of the non-delegation doctrine: Congress can’t let an agency legislate its own authority).
The argument against the CDC’s authority is basically that either the CDC’s authority is limited and it hasn’t been granted the power to require masks for air travel, or its power isn’t limited and the grant of power is unconstitutional. Either way the law doesn’t support the CDC’s action, and this is basically the argument that’s been made when challenges to the CDC’s eviction moratorium have (sometimes) prevailed.
Judges *could* come up w/ a principle for distinguishing masks (something like the directness test for proximate cause of disease spread could work), but under the *actual* reasoning of these recent decisions, I don’t see how the mask order is ok if the eviction order isn’t.
— Lindsay Wiley (@ProfLWiley) March 17, 2021
The court is saying when Congress authorized “other measures, as in his judgment may be necessary,” Congress meant other things that are similar to “inspection, fumigation, disinfection, sanitation, pest extermination, destruction of [infected/contaminated] animals or articles”
— Lindsay Wiley (@ProfLWiley) March 17, 2021
Earlier in the pandemic a court might have upheld the mask mandate in the face of such a challenge, contending that a mask mandate for transportation is closely related to preventing the “spread of communicable diseases from… from one State or possession into any other State or possession.” However the CDC itself says that vaccinated people no longer need to wear masks based on its own studies showing that they neither get nor spread the virus (and while protection against asymptomatic transmission is not perfect it appears that those who have been vaccinated and are asymptomatically infected are also far less likely to shed the virus).
We May See The Mask Rule End Soon
My suspicion is that the case will be moot, at least with respect to masks, long before it’s adjudicated. The mask rule was extended through September 13 even though it’s no longer needed.
- Infection rates are low enough in the U.S. and continuing to fall. The President could declare victory for the Fourth of July and end the mask mandate early.
- Summer is likely to have low Covid-19 prevalence such that the justification for extending the mask mandate past September 13 will be weak (even if the virus returns later, and questions about a mask mandate resurface).
- There’s almost no world in which Democrats go into the midterm elections without declaring victory and thus removing the justification for the mandate.
It’s only in this third scenario where we likely start to see rulings on the matter before the case is mooted at least as to masks.