Supreme Court Eviction Ruling Makes Clear Airline Mask Mandate Is Illegal

A majority of Justices of the Supreme Court had said that only Congress could pass an eviction moratorium – that this was not a pre-existing power of the CDC. And though both houses of Congress and the Presidency are held by the same party, they did not act.

The Court previously let the eviction moratorium stand since it was about to expire July 31, and the federal government stated it wasn’t going to be extended. Then the Biden administration extended it, and the legal challenge proceeded back through the courts.

The Supreme Court lifted the stay on a lower court’s injunction. That doesn’t end the eviction moratorium immediately, District Courts must still enter final judgments that bar enforcement of the rule. Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor dissented. President Biden himself had suggested the extension of the moratorium was likely illegal, but he hoped it would take awhile for that to be determined definitively.

The court’s majority opinion was unusually and strikingly clear: “The applicants not only have a substantial likelihood of success on the merits – it is difficult to imagine them losing.”

This opinion’s key passage makes the exact argument I’ve offered on this site for why CDC authority – on which the TSA mask rule relies – isn’t as broad as the administration claims and upon the mask rule rests. (see from March and after the Court’s eaerlier eviction ruling),

The Government contends that the first sentence of §361(a) gives the CDC broad authority to take whatever measures it deems necessary to control the spread of COVID-19, including isssuing the moratorium. But the second sentence informs the grant of authority by illustrating the kinds of measures that could be necessary: inspection, fumigation, disinfection, sanitation, pest extermination, and destruction of contaminated animals and articles. These measures directly relate to preventing the interstate spread of disease by identifying, isolating, and destroying the disease itself. The CDC’s moratorium, on the other hand, relates to interstate infection far more indirectly: if evictions occur, some subset of tenants might move from one State to another, and some subset of that group might do so while infected with COVID-19. This downstream connection between eviction and the interstate spread of disease is markedly different from the direct targeting of disease that characterizes the measures identified in the statute. Reading both sentences together, rather than the first in isolation, it is a stretch to maintain that §361(a) gives the CDC the authority to impose this eviction moratorium.

The court reads 42 U.S.C. § 264, narrowly and this reading binds the federal government. The mask mandate, like the eviction moratorium, is a power not mentioned in any statute nor substantially similar to a power mentioned in statute.

The mask rule does not involve “identifying, isolating and destroying the disease itself” but instead assumes that “some subset [of passengers] might move from one State to another…while infected infected with COVID-19” and “This downstream connection between” mask-wearing by everyone “and the interstate spread of disease is markedly different from the direct targeting of disease that characterizes the measures identified in the statute.”

Airlines of course required masking before the government order went into effect. Their rules were both tighter (no medical exceptions at United, American, Southwest, JetBlue) and more flexible (exemption with medical consult and for young children at Delta). If you think a mask mandate is good policy, remember that there was one before the federal government got involved with this 7 months ago.

In other words, mask mandates were in place before the federal rule and airlines could impose them even without the federal rule. That rule was duplicative when instituted, and vacating it might have zero effect if the airlines found it still to be useful. I think wearing masks – of higher quality, properly fitted – is a good idea, and that the single ply paper strip with two strings that meets the current requirement is silly (some airlines in Europe have stricter rules).

So far litigation over the mask rule has been limited. A single pro se litigant sought to have Justice Thomas on his own vacate the mandate without prior action by any court. That wasn’t ever likely to happen. It’s not clear that the mask mandate will be fully tested before it expires, even with the mandate’s extension into January 2022.

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. With regards to the mask mandate, do you think the CDC is a similar entity as the TSA and its federal regulations on liquids, illegal substances and items?
    You got your six judges to interpret the Constitution the way you want to…so here’s your crutch to equate any public safety policies with tyranny.

  2. Haha. Bring a case, Gary. You won’t prevail. The mask mandate is directly related to infection prevention.

  3. Literally the worst legal analysis ever. How about stick with the points and miles and leave the lawyering to us lawyers?

  4. This is really a way to control people. People who wear masks need to be arrested and charged with terrisom.

  5. I just flew to Greece and back, with a flight to EWR to catch the direct EWR-ATH flight on UA. After wearing the mask through those 2 flights with layover in EWR, we waited in the club in ATH then caught a flight to Corfu. I’d had masks on so long that I developed sores behind my ears! I don’t know if they’d ever lift the rule, but I wish I’d waited until they did. I got my vaccination, and we had to take Covid tests in Athens before being allowed back to the states. Those rapid tests are handy, perhaps they’ll test everyone before boarding? Despite the ruling, I think airplanes will keep up the masks for a long time. I also think UA could go back to full Polaris now, but I doubt that too!

  6. No, gary, idiot, total non sequitur. “Illegal”? FFS. smh. Yeah, I know you only push this crap to be a whore for corporate bankster crooks (hey, why not donate most of this dirty money to amazing hospital patient foundations, esp for preemies and kiddos? I do so with clean money) and to get clicks, and that I should let it go. Yet:


    Mask. Vaccinate. Wash hands. Distance. Oh, and gary, do the slightest tiny bit of exercise and also refrain from stuffing your hole after the five thousandth calorie of the meal.

    Or, if not: stay the fuck out of my (hospital: ed then) ICU when you selfish little bitches get covid, so that I may blessedly care for my patients who really need my exceptional skills. With “freedoms” come responsiblilities. Take responsibility for your choices. Choose to die at home. Imagine a death by drowning. Now, imagine that you KNOW that you are going to die by drowning*. Suffocation. Then, imagine your realization that you know you are going to (choose to) be suffocated.

    Make and put your will and the phone number of your chosen mortuary in an easily accessible/noticeable place.

    *not under water, with all of the mechanical and human support possible from our Level 1 trauma center and teaching hospital: intubated, vented, monitored, amazing RTs and RNs and docs and residents and interns and med students and…

    //after working all night and the last 24 hours when THREE of our patients (needlessly) died in the unit …including two who were way, way too young to have to die

  7. Hey Gary…why not go back to writing about hookers in airport hotels or white trash fighting on Spirit/Allegiant/Frontier instead of showing that you are unlettered when it comes to the law…or public safety/human decency for that matter.

    Remember…sex and violence generate more clicks. Have at it bud.

  8. CHRIS, idiot:

    Why do five hundred thousand americans die of heart disease per year with what we know about nutrition, exercise, vs sugar, etc? Why still do a two hundred thousand++ americans die per year from smoking? Just this week near me: two people died in a car crash from not wearing seat belts (the other six who did lived.) Fucking seat belts.

    Pull your head out of your ass.

  9. @ Jan — Airlines have the right to maintain the ban, and they definitely will, so it will not be lifted anytime soon (maybe in a year if we are lucky?). The masks hurt my ears as well, but if you try different masks, you will find some that do not hurt much. I have found that the cheapest masks are the worst. Try BYD Care masks. They are actually used in medical settings. They cost about 24 cents each in a box of 50, while the el-cheapo ones are about 8 cents each in a box of 50.

  10. I believe the masks help
    in isolating the virus to some extent (so it doesn’t spread from your person/mouth/nose) and if traveling is allowed then some subset of population might travel from one State to another, and some subset of that group might do so while infected with COVID-19.

    So masks directly help stop the spread that may be caused by traveling.

  11. “The mask mandate is directly related to infection prevention.”

    Right. And I have a bridge I’d like to sell you too.

  12. A veteran is living in her car and deeply in debt because the deadbeat tenants won’t leave. So much for justice in this world

  13. @J-Please don’t drink before posting. Otherwise most will just skip your posts. And as for the airport mask “mandate,” I’ve passed through IAH, CLT, DCA and DFW in the past two weeks and a notable number of pax are not wearing masks. There is no airport enforcement of the “mandate” now (if there ever was).

  14. J
    looks like your new CNA gig is working out well for you. A step up from Taco Bell would you say?

  15. Boy, a subset of medical personnel sure have become whiney. You don’t get to decide who to treat, your mandate is to save life. If that’s too difficult, go find another job.
    Or link to your rants about needless obesity, drug use and alcoholism.

  16. Hehe Tom K (from my beloved sea, the ‘heartplace’ vs. birthplace of my exceptionally amazing –although unfortunately deceased– mammason):

    Thanks for the laugh and intelligence, bud. I am grateful that these will be my last emotions before I head off to bed/sleep after this long and (unnecessarily) heartbreaking shift.

    Thanks again, mate! All the love in the world to those for whom you feel it.

    Aside/addition: when I previously wrote: ‘ …RNs..interns…and…’ well, let me clearly write another deserving: ‘housekeeping’ Amazing housekeeping. I work in an amazing ICU which includes a housekeeper that has worked for our unit and patients for over twenty five years! 25 years! And going and ongoing. Hispanic. Angel. Keeps making this great country great.

  17. Sorry, the TSA mask mandate is not linked to the eviction issue. The court has already ruled that colleges and public agencies can mandate vaccinations, which demonstrates their view on the right to impose public health measures. Only one justice has dissented from this broad principle.
    Eviction moratoriums tend to focus on deprivation of property without due process, which is a favorite principle of the courts. masks aren’t really their thing.

  18. Passengers don’t have standing and the airlines are happy with the masking requirements, so there will never be a case that is the same situation(landlords being told they have to do something they don’t want to do). It’s clear that the airlines are making plenty of cash. Every flight is full up and they’re unable to find staff to bring more flights online.

    If you have some crusade to get rid of masks, airlines are the last place you’re going to find like-minded people. Airlines have customers and you’re got going to get many planes full of people in a death cult. It behooves them to keep masks.
    Landlords don’t have customers, they have people desperate for a place to live.

  19. Gary, u really don’t care how many people die. . And to idiot Dave above who sells bridges, where did u get your medical degree? Trump

  20. I don’t believe airlines will keep masks around once the mandate is lifted. It is stifling business travel and that’s what pays the bills. The original mandate was put in place so that airlines could pass the blame on to the federal government. They could say “it’s not our policy, it’s THE LAW”. The mandate was extended in April because the airlines, much like a cartel, don’t trust each other. They knew that without the federal mandate in place, someone would move to drop the requirement for at least some subset of passengers/flights, which would put tremendous pressure on everyone else which would certainly cause some labor troubles with FA unions. So they lobbied for the extension, but in doing so they are now stuck with it beyond what they had hoped for.

    The reality is that the mask requirements won’t exist without the mandate. While Gary is correct in reminding us that the airlines had the rules before the government, the situation is vastly different now than it was in January. Once the mandate is lifted someone will drop their requirement (my money is on UA), instantly making them the airline of choice for high-margin business and first class travel. They would likely be able to increase fares as well, as many people will pay a premium for comfort. You’d see the rest of the mainlines follow suit within weeks. Most people that see beyond the politics and paranoia of current covid coverage know this, which is why the mandate was again extended.

    My prediction is that the end of masks on airplanes will end up being tied to vaccination status. Current travel platforms already support the ability to document a traveler status and share it across host applications (think Pre-check or Global entry). I don’t see their being much appetite for vaccine mandates for domestic air travel, but I can see a compromise where travelers that show proof of vaccination can forgo masks. This is probably hardest to implement on SWA, but I’ll bet even they can figure out something if the alternative is a 100% mask requirement and the ensuing loss of pax to the competition.

  21. @bhcompy

    Don’t equate full flights with a profitable operation. Short haul leisure fare pax may fill up a plane, but they don’t meaningfully contribute to the bottom line for the mainline carriers.

    Business travel is at a fraction of normal, and they care much more about comfort and service than people buying BE tickets to Florida.

  22. @Gary – you keep using this ” single ply paper strip with two strings” line in your masking articles. Can you provide a photo of such a thing, and statistics (or even anecdotal evidence) that show such things are being worn in airports in any significant numbers? I few many times (domestically) in July and August, and can only recall seeing 1 or 2 folks in completely substandard masks. Lots of people in reasonably fitting cloth masks, which should probably be banned. But very few openly flouting the rules. If you’re going to be inflammatory, at least don’t harp on a talking point that is so easily dismissed.

    Here’s my recent anecdotal note, albeit not in an airport. I resumed lecturing this week at my university, where masks are recommended but cannot be required due to our moronic governor. Every one of my students has worn an appropriate mask in every lecture. My colleagues report similar compliance in their lectures. What the students are doing on their own time in the evenings is anyone’s guess (probably not sitting at home by themselves). But in class they are following the guidelines without any statistically significant issues.

  23. @Geoff Rothman – you’re conflating many different issues here. States have a broad police power that the federal government does not. Public agencies have certain rights *as employers* with respect to employees. And the Supreme Court’s language cited here isn’t about the takings issue (5th amendment) it’s a statutory interpretation issue – that the power CDC relies on both for the eviction moratorium and for the mask mandate doesn’t give the agency the power it had asserted.

  24. Steve, business travel isn’t going to return until the business travelers are comfortable. I work for a consultancy and travel is our life. Travel is off the books for us until at least the middle of next year. Employee sentiment and health comes first. It’s an employee’s market right now, and there are enough that don’t want to travel that companies are okay with it, even if customers can get a bit testy

  25. @David – the mask mandate being “directly related to infection prevention” isn’t the relevant issue here, the powers the CDC has been given by statute to prevent infection are specific and the Supreme Court says that language in the statute governs.

  26. @gary – Interesting. You know these are not paper, right? Rather they are usually polypropylene, which has electrostatic properties that allow it to contain particles smaller than the actual weave tightness. Are you sure they are single ply? Most procedure masks, regardless of costs, are actually triple ply. Some are double ply, but I think those are actually pretty hard to purchase – usually limited to (pre-pandemic) healthcare receptionist like roles.

    I buy and wear lots of procedure masks to support a modest sized cleanroom operation. They are my daily go to for covid protection now. Pre-pandemic, standard 3 ply were ~$10/box from industrial suppliers. They are fine, although sometimes construction of the elastic bands and nose piece is not great. I’ve seen $5/box options recently from Grainger/Zoro, but figured that is because there is now a huge manufacturer surplus and they need to get them off the shelves at any cost. I’ve recently been buying from US manufacturers, who are happy to ship directly. Their prices are a bit higher, but the assembly quality (bands & nosepiece) are better.

  27. And just to be clear, my point here is not that you should not be calling out bad masks. Just call out the right bad ones. If everyone was wearing procedure masks, we would be much better off than we are now. Call out the cloth masks, or improvised face coverings (bandanas, gaters, etc, which are worthless). Getting on top of this thing is a game of large statistics. If everyone wore procedure masks, then we would be raising the masking effectiveness in the bulk population.

  28. By wearing a mask despite being vaccinated and having a negative PCR test before traveling, I am being required to protect the unvaccinated sick, lame and lazy from themselves. Oh, and do you think all those who do get really sick have the financial resources to cover their extensive medical care? No, probably not. Just let the “gummint” (you the taxpayer) cover it.

  29. It’s disappointing to see that an otherwise useful blog about travel take such an uneducated stance on masks.

    Masks have been demonstrated to work, they are effective, and there would have been more infections and death had there been less compliance.

    The platform you have is certainly yours to make statements on. It’s unfortunate that it aligns to the false information, and trying to equate masks to the ending of rent moratorium is just ridiculous and lack critical thinking.

  30. @Too Many – what’s the “uneducated stance on masks”? I called for general masking, and for airlines to allow employees to wear masks, while the CDC was still recommending against it. I consistently argue for higher quality masks, properly worn.

    This post is not an argument against masking. In fact, airlines required masks before the federal government added its own rule on top.

    Instead this is simply pointing out the extension of the Supreme Court’s ruling on CDC legislated authority.

    You say “trying to equate masks to the ending of rent moratorium is just ridiculous and lack critical thinking” but never offer a reason why, how you’d distinguish it from the Supreme Court’s holding here?

  31. @Chad – these masks aren’t actually procedure masks although they are made to look like those.

    I absolutely agree that a level 3 procedure mask would be far more protective than what most people wear!

  32. @gary Whether they are certified procedure masks with an ASTM rating or not, they are still likely 3 ply and definitely not made out of paper. The cheapest option on Amazon that just came up when I searched for disposable face mask ($1.99/50, which is truly a blow them out because the warehouse space is more valuable price) are still made of poly. They are not paper. I don’t understand why you keep repeating this, when it is so easy to use accurate language.

    Fully agree with others here who keep saying (paraphrasing): It’s your blog and you can obviously say what you want. But it’s unclear why you’ve chosen to die on this hill of unhelpful, and sometimes obviously incorrect masking information.

  33. @J – you’re obnoxious. And make no sense. Would be happy to see you evaporate from here.

  34. My guess would be that Delta would be the first airline to lift the mask policy after the federal rule gets dropped… because their flight attendants are not unionized.

  35. The only masks that work are properly fitted KN95 or N95 masks, all else is just “hygiene theater”-
    Michael Osterholm, PhD, MPH | CIDRAP

  36. People who do not wear the mask and do not get a vac should just save us time and die now. Russian roulette does not work with the virus. Decrease the excess population of idiots and save us medical expenses

  37. @Marv – Dr. Osterholm may be correct in his conclusion, but that’s not helpful without knowing the context of the question he was addressing. If the question was “How do I give myself the best chance of avoiding infection?”, then N95 with a proper fit test is a reasonable answer (P100, PAPR are also reasonable, but the public seems to not know about that option yet).

    But since the focus of Gary’s original post was regarding governmental regulation, the premise is (presumably) how do we best protect the population, not the individual. Individual outcomes (generally) shouldn’t matter to government decisions. In that paradigm, most any mask is helpful for reducing the spread of the virus (except the most completely transparent ones). And reducing the spread will eventually take us to a place where an individual is statistically unlikely to encounter someone with Covid in their daily activities.

    This is a game of probabilities. Virtually nothing is 0 or 100% likely. We all live somewhere in between. I typically interact with 20-30 people in a day. If 1% of the surrounding population has Covid, then in only a few day’s I’m likely to interact with an infected person. So for me to go, say 3 months, without interacting with an infected person, the percent of people infected has to be much much lower. That’s the goal. (Caveat: All sorts of correlated noise in my thought experiment because the people I interact with daily are repeats, not drawn randomly from the broader population, and their interactions are mostly similar.)

  38. @Gary – Geoff already pointed out that your comparison of eviction moratorium being overturned is not in the same vein as public health/safety mandates. The Supreme Court has already signaled their view of organizations having a right to mandate public health measures. This has been seen in many organizations now requiring vaccinations for employees, or customers required to wear masks while at an establishment. The CDC, by extension, is imposing it’s weight on public health measures. I am not aware of any current federal agency or institution that would otherwise have the coverage / credentials the CDC has. The CDC has certain authorities to implement regulations related to protecting America from health and safety threats, both foreign and within the United States, and increasing public health security.

    Your attempt to apply the overturning of the eviction to overturning masks and public health just does not equate.

  39. Interesting legal argument. However the facts are very different, and facts make a difference.

    The eviction moratorium operates on a micro level – there is no proven correlation between evictions and covid spread. In fact there is no reason to believe that evictions will increase the spread of covid (presumably the sheriff, the tenants and shelter residents can all wear masks and maintain distancing). The moratorium also had a massive negative financial impact on millions of landlords.

    The airline mask mandate addresses a proven risk – we know that infected people will spread the virus in a closed space where people are not distanced. The mask is an inconvenience, but it does not negatively affect the financial situation of the airlines or the passengers (flights are packed).

    That is not to say that these facts will trump the statutory construction. But they do matter. And as others have noted, there is nothing to prevent the airlines from requiring masks, no different from requiring appropriate clothing (or for landlords to voluntarily forego eviction).

  40. Gary, you are comparing a 5th Amendment takings clause issue with the authority of the CDC under the necessary & proper clause. These issues were heavily litigated over 100 years ago. This is so much more than apples and oranges – you’re comparing apples and tractors in scope and size of issues. You have many friends here who would be happy to advise you before you post an analysis of legal issues. Why not take free advice?

  41. The fact that an alleged travel blog has so many comments about wearing masks, types of masks, arguments about masks, etc. is unfortunate.

    Grow up everyone and take care of your own self. No one else is taking care of you.

    Sad this blog came to this.

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