One of the early acts by the Biden Administration was to direct the CDC to impose a mask mandate for transportation. For airlines that meant requiring masks that were already required and introducing a new exception to wearing masks for medical reasons, which American, United, and Southwest didn’t previously allow. However it also means that airlines won’t be the ones to decide when mask requirements end.
New court rulings against the CDC’s eviction moratorium have caused one leading public health law expert to think that courts might also rule against the mask mandate.
Three district courts have ruled against the CDC’s eviction moratorium, and two have upheld it. Two in recent weeks – Tiger Lily, LLC v. US Department of Housing and Urban Development and Skyworks v. CDC – have offered similar conclusions against the CDC’s authority.
- 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.” It specifies examples of what may be required, though: “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 court ruled that Congress’ giving examples of what the CDC may do is limiting, that ‘other measures’ must be similar in kind to those listed. The CDC’s authority is not unlimited.
- And Congress couldn’t have provided unlimited authority anyway without running afoul of the non-delegation doctrine – Congress can’t let an agency legislate its won authority.
Either the CDC’s authority is limited and it hasn’t been granted the power to ban evictions, or its power isn’t limited and the grant of power is unconstitutional. Either way the law doesn’t support the CDC’s action, according to these recent rulings. [This conclusion of law, while seemingly reasonable, is not unchallenged – as I note other district courts have ruled in favor of the CDC’s moratorium on evictions.]
Lindsay Wiley, who directs the Health Law and Policy program at American University’s law school in D.C., worries that this line of reasoning would also invalidate the federal mask mandate.
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
Professor Ilya Somin, however, believes transportation mask mandates are likely to be upheld,
I think this is unlikely because the focus on transportation is much more closely related to the purpose of preventing the “spread of communicable diseases from… from one State or possession into any other State or possession.”
In addition, limiting it to transportation may fall into the category of promoting the “sanitation” of “articles” that facilitate the spread of disease across state lines. In this case, the relevant “articles” would be seats and air spaces on buses, airplanes, and other modes of transportation covered by the mask order.
These distinctions may be the reason why Biden’s advisers concluded (correctly, in my view) that it did not have the power to order a general nationwide mask order, but could impose a much narrower one focused on transportation.
Last summer the TSA was being called upon to impose a mask mandate. I argued that was clearly beyond the agency’s legal authority. I also argued that the FAA’s authority was also limited.
That’s most certainly correct, which is why the Biden administration relied on CDC authority under 42 USC 264(a), an area where I must defer to others more familiar with relevant case law. However it’s clear that there is at least a controversy over whether the federal mask mandate is legal, and current cases working their way through the federal courts regarding the CDC eviction moratorium may provide this guidance.