Supreme Court Ruling Shows Why Airline Mask Mandate Is Illegal

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.

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. @ Gary — I’m sure all of the nasty political comments will follow, but mask mandates are pointless now. If people are too ignorant to get vaccines, let them get COVID. The arguments about mask mandates are so 2020 at this point. The people complaining with absurd Holocaust comments are really just mad because Trump lost the election fair and square. They know it, but can’t admit the truth. They will eventually get over it, or just like refusing to get a COVID vaccine, will only be hurting themselves with their pent-up anger.

  2. I do think there is some nuance and difference between the eviction moratorium and mandating masks. The eviction rule is one or two steps removed from preventing COVID (i.e. they try to link it as because of these other COVID measures, which resulted in less employment, which results in the inability for folks to keep up with rent, you can’t evict someone). On the other hand, wearing a mask can directly limit the transmission of the virus in interstate travel. How effective the later is is of course up to some debate based on the types of masks and how well people are wearing them.

  3. Soon the CDC will make the vaccine fully approved for use and following that upgrade all first responders, military and health care workers will be required to be vaccinated or shown the door like the hospital workers in Houston. The government exists to step in when its citizens stupidity makes them a risk to the greater good. The right to being stupid won’t be upheld at the Supreme Court and I certainly don’t want a first responder or health care worker that thinks their personal reservations about the vaccine are more important than the greater good. It’s time we stop nurturing stupidity as a fundamental right of democracy!

  4. Dear JustSaying: Just because something is a good idea, or even a great idea, doesn’t mean the government has the power to do it. This is basic, high school civics stuff. My personal rule, for what it’s worth, is that I don’t open my mouth unless I actually do know what I’m talking about. Or close to it, at least. You’ll never see me, for example, commenting about an IT issue or rocket science. Why don’t you have the same rule?

    For what it’s worth, even people who actually do know what they’re talking about are hesitant to predict a specific Supreme Court outcome before there’s an actual case. But that’s a different topic for a different time.

  5. @Gary This is clearly a case of the unions not wanting to require vaccines for their people.

  6. Oh dear. The 5-4 Supreme Court suggests that the CDC isn’t empowered to rule on property rights as much as public health. A moratorium on evictions from private property isn’t equivalent to a public health order to wear masks to prevent transmission in enclosed spaces. Your false equivalency isn’t impressive. Stick to travel details. You don’t know jurisprudence.

  7. Get rid of the idiots. At this point if you don’t get the vaccine it’s on you. Good riddance and you shouldn’t be able to access the healthcare system either with you get covid for being a moron. All of our insurance rates will be going up because of all these stupid people.

  8. There are substantial differences between the eviction moratorium and the mask order and the CDC’s powers in each. Numerous Constitutional cases have stated that the Constitution is not listing of all powers held by the federal government. However, the key difference is that the eviction order is a taking of property without due process and the mask order takes no recognized property right. I agree with many of the comments above that amount to Darwinism but you should recognize that there is a huge difference between depriving a property owner of the use of their own property and depriving of someone of the “freedom” not to wear a mask. We have laws that require people to be dressed when they fly (not “dress codes,” but clothes at all) and no one is complaining that they’re required to wear clothing when they fly. This is a complete false equivalency.

  9. The article reads “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.”

    Some missing ideas include “with few people unvaccinated and with few new cases of Covid-19….the federal requirement no longer makes sense”. This is not yet true.

    President Biden may a huge Trumpian like error in encouraging no masks way too soon. Biden’s footnote (only for vaccinated people, no masks) has been lost in the message. In addition, effective masks on vaccinated people makes sense because possibly 20-25M vaccinated Americans are at risk to getting Covid-19 because vaccines are not 100% effective even though people act like they are.

  10. Be careful, Gary. Once *you* declare that the “Airline Mask Mandate Is Illegal”, as you do in the title of this post, you have validated those who refuse to wear masks on a plane. I am NOT talking about those who become violent or aggressive on planes (for any reason, masks included). But how do you criticize someone for simply refusing to follow an illegal policy — even if it means flights are delayed, others get upset, etc.? If one agrees with the position that it’s illegal, one should either embrace their civil disobedience, or shut up on the topic.

  11. For all the *AGONIZINGLY ENDLESS* debate about whether to wear a mask and save the world or not wear a mask and preserve ‘Merican Liberty all I can say is this: ever since we’ve been masking up at the start of the zombie holocaust I have avoided getting the common cold. In the Before Times I was cursed with two colds a year, like clockwork. I’d get the usual winter cold and the dreaded summer cold which, for whatever reason, was always worse than the winter cold. So…all arguments aside…it doesn’t take Fauci or Matlock to figure out that MASKS PREVENT PERSON-TO-PERSON TRANSMISSION OF BUGS, GERMS, VIRUSES AND COOTIES. Anybody who says otherwise is a cretin. That said, I am easing back on wearing a mask. I hate them. I’m vaccinated against COVID-19 but *not* from the common cold. From now on I will don a mask in any situation where I have to breathe the effluence of strangers. Just my two cents. Good day!

  12. Gary has been on this crusade again masks for quite a while now.
    But he might get his wish…for our next pandemic we won’t have any federal guidance at all.

  13. @Thing 1 – it was an airline policy prior to the federal mask mandate and I don’t know any argument that the airline policy was illegal (except perhaps with respect to bona fide disabilities precluding mask wearing, but that’s debatable).

  14. Is it on my 19 month old to rely on everyone’s hopes and prayers that an anti-vax person who’s carrying an infection doesn’t share their freedom with her on a plane? Some of these comments reek of “not my problem” logic. To all y’all, respectfully, f**k off.

  15. Forget politics for a second and think about proven scientific study of virus transmission and evolution. Even when vaccinated, you can still catch and transmit the virus. Until the planet (connected by airlines) reaches herd immunity, it’s in our own self interest to limit the spread of the virus. The more people it goes through, the more it mutates. The more it mutates, the higher the probability that the current vaccines will not work against the new strain. If you think you are one-and-done with this vaccine, and if others perish then so-be-it, then you are misinformed. You take a new flu vaccine every year for this reason, 100 years after that pandemic. Therefore, wearing masks in high densities of human contact becomes an obvious step towards this goal to eradicate COVID-19 and future mutations. Whether it’s legislated in the US or not is beside the point, and your political leanings are irrelevant. We, as world travelers, have an ethical choice to make. Now, it’s down to you as the informed individual to decide.

  16. Ari – get over yourself. If your 19 mo gets sick, odds are someone who has the common cold/flu will get her sick.

    So – no – your 19 mo is “not my problem”. Your 19 mo is your problem, and if you deem others too dangerous for her, then either stay home or drive.

  17. AdamH & JustSaying, At this point no Americans have to wait to be vaccinated or are being denied vaccination. If I’m protected by my vaccination why would I care if other passengers chose not to be?

    Masks on planes this late in the year is ONLY political and nothing else. They’re essentially ignoring medicine. The longer they hold onto these rules the more they can claim credit for “solving” covid, and that is the only purpose.

  18. Gary is neither a lawyer or a medical doctor….but you’d never know it from this site.

  19. Wayne, I assume u r a trump supporter so I am not upset that u won’t wear a mask. One less racist voter come next election

  20. @Justine Kirby – tell me why i am wrong? i have cited legal scholars on this in earlier posts but that’s beside the point

  21. Masks do help protect others from catching covid19. Am a physician, so fairly well-read on the subject. Well-fitting N94/N95 masks may help protect the wearer as well.
    Mandating masks helps protect the still-unable-to-vaccinate (like under 12 yo). And those who may not mount an adequate immune response with the vaccines. Like the elderly and the immune-compromised. And there are still the 12% or so who can still catch Covid (esp the Delta variant) even after immunization with our most effective vaccines . They may not be a susceptible to serious complications – unless they have high BP or diabetes or be elderly…. in which case, they may.
    So, Ari, am with you all the way. We must protect our vulnerable. And I do believe airlines have that right to impose safety rules.

  22. Having not read the plethora of comments, here’s my take:

    Covid 19 among adults is now largely a preventable disease (and, yes, I fully understand that people under 12 years old cannot currently be vaccinated; and that some people may not be qualified candidates for the vaccines for a variety of legitimate medical reasons). But by-and-large, the vaccines now widely available on virtually every street corner in America, at no charge, do an outstanding job of preventing infection. Per ABC news, 99.5% of all USA deaths from Covid 19 in the first six months of 2021 have been unvaccinated people. A stunning and sobering statistic.

    The science shows that the risk is to the unvaccinated for new infections of Covid 19 and its variants, not to those vaccinated (and, yes, I also understand that the vaccine is not 100% effective).

    If you want to continue to wear a mask in any place at any time, please feel free to do so. I will not give you any side-eye or think negatively of you (perhaps you cannot be vaccinated). But, similarly, do not continue to require me, or admonish me, as a fully-vaccinated adult who chooses to not wear a mask. There’s not a really good way for me to prove that I am vaccinated, as I read that the vaccination cards can be found on the internet and forged. But, if I was not, then the same applies to me: The risk is to the unvaccinated.

    So, protect yourself. Protect your family. Protect your loved ones, your co-workers, etc. If you qualify for these vaccines, get fully vaccinated. And thus shift the risk to a continuously shrinking number of Americans. Once we get to herd immunity, or even more than that, Covid 19 can start to become just a nightmare in our rearview mirror that our grandchildren can read about in the future. We did it to polio beginning in the 1950’s thanks to Drs. Salk and Sabin, and we are capable of doing it again here.

  23. Where do you get that “other measures” must be similar?
    Please cite court rulings.
    Thanks!

  24. Gary – Could you please link to those earlier posts citing the legal scholars rather than expecting me to go through and find them. BTW, having your legal argument backed up by people who have training in, well, the law is not “beside the point.”

  25. @john tecumseh – they wouldn’t act on a request – that hadn’t been litigated anywhere yet! – to issue an immediate injunction. That is… pretty normal.

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