The Supreme Court refused to overturn the CDC’s eviction moratorium, even though a majority of justices believe that it is illegal. And the same reasons 5 justices believe the eviction moratorium is beyond the CDC’s authority apply to the federal transportation mask mandate as well.
- The CDC eviction order was upheld 5-4.
- The 5th vote to uphold it came from Brett Kavanaugh who wrote that he only upheld it because it expires in July anyway and the CDC says it won’t be extended.
- And leaving it in place leads to a more orderly wind down, consistent with other policies like rental assistance.
- But there won’t be 5 votes to uphold it if it were extended again.
The CDC’s orders, which forms the basis for the TSA’s transportation mask mandate, suffers from the same legal defect as the eviction moratorium. Specifically,
- The mask mandate, like the eviction moratorium, is a power not mentioned in any statute nor substantially similar to a power mentioned in statute.
- And even if Congress meant to give the CDC broader powers than mentioned in law, that would be an unconstitutional delegation of its power.
The CDC 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.”
That sounds pretty broad. And if they could do anything to prevent transmission and spread that would be unconstitutionally broad. However the statute specifies examples of what may be required: “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.”
Congress’ giving examples of what the CDC may do is limiting. The ‘other measures’ that ‘may be necessary’ must be similar in kind to those listed.
Either the CDC’s authority is limited and it hasn’t been granted the power to require masks on planes, 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 the Supreme Court agreed with this exact take in reviewing the CDC eviction ban.
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 5 months ago.
With enough vaccine in the U.S. for anyone 12 or older who wants one, reduced spread, and an indoor environment safer than bars where masks are no longer mandatory, in addition to likely being illegal the federal requirement no longer makes sense.