Will A Federal Court Overrule Biden’s Transportation Mask Mandate?

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.

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.

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. Regardless, the mandate should end as soon as vaccines are available to everyone who wants one (likely June). Passengers will of course remain able to wear an N95 mask to protect themselves should they feel it is necessary.

  2. Not being an attorney I don’t know either, though I suppose there are ways of doing this by declaring a public emergency using wartime precedents. What has amazed me is that the states have been able to impose restrictions on entry, which seems grossly unconstitutional, but a little reading showed they have broad public health powers that certainly appear to allow this. At least so far as I know none have been successfully challenged in federal court yet.

  3. @Doug there are TONS of people who can’t get vaccines, and wont be able to in June. Those under 16, for example, and those with conditions that will not allow for a vaccine as of yet. It amazes me how there are some people that are SO offended as to put a mask on for 6 months, now that we are reopening. They complained that we were closed, and now that things are moving forward, they need to find the NEXT thing to complain about. Over 500000 people are dead. The LEAST we can do is be careful for another 6 months or so.

  4. It is also worth noting that there have been multiple specific tests that have shown that there is minimal chance at best of transmitting viruses because commercial jet aircraft have had robust air filtration systems since long before covid even on airlines that sell to full capacity.

    There have been a whole list of government actions – state, local and federal – that have been enacted during the pandemic and have never been challenged in court because the speed of legal challenges is far slower than the speed with which rules and restrictions are enacted. Some of the rules will never be challenged because the covid era will end far faster than alot of people imagined.

    Joelfreak,
    I have never heard anyone explain why we allowed 50,000 people per year die from flu in the US, every year and accepted that as normal. At what point do we accept that it is not society’s job to accommodate everyone because a small minority cannot or will not be vaccinated?

    Remember the WHOLE reason for lockdowns in the US in the first place was so that the health care system would not be overwhelmed which is impossible to happen w/ covid at this point.

    Attempting to eliminate all deaths from any infectious disease is and will be futile.

  5. Tim – you are EXACTLY right. The lockdowns and restrictions were NOT to prevent people specifically from getting sick but to avoid such large numbers of sick people that it overwhelmed the healthcare system. Now that hospitalization rates (and death rate) are much lower due to a combination of herd immunity (between people who were infected and have antibodies plus those that are vaccinated) and better treatment protocols there is practically no risk of the healthcare system being overrun.

    Given that it is time to relax restrictions (as practically every state is doing) and allow business and personal freedoms to get more back to normal. I unfortunately think the mask mandates will be in place at least another 2-3 months since that is mainly Dem theater.

    @Joelfreak – it isn’t MY job to protect anyone else. I’m not going around coughing on people, respect distances and wear a mask where required but don’t feel it is my responsibility (or anyone else’s) to “protect” people that decide not to get vaccinated or otherwise feel at risk. It is all about personal accountability. If you feel at risk STAY HOME but don’t expect others to limit their activities to protect you.

  6. Again I ask all the hyper-maskers: if your magical pieces of porous/breathable cloth placed in front of your mouth ARE actually magical and DO protect you from viruses, why do you care if anyone else is ‘selfish’ enough to not wear one? It’s their problem and you’re perfectly safe. Mask wearers have nothing to fear. Amirite? lol

  7. You can debate the intricacies of constitutional and administrative law till the cows come home. I don’t see that it makes much difference. If CDC mask mandates for transportation are overruled, it just means more people will have to wear masks, at least on planes anyway, as Gary has previously asserted. .

  8. Don’t see the point of this. Airlines will require masks on their own. The maskless wonders will have to drive to their destinations if they have a problem with it.

  9. Seems like there is a case that a mask helps “disinfect” air being expelled from a potentially contagious passenger. Don’t think it would take a super activist judge to accept that argument. A mask is a filter (obviously the type of mask greatly impacts how effective the filter is at actually capturing the virus — from large water droplets on a cloth mask, to the surface virus in an n95 mask). Filters are used to disinfect all the time (water, etc.).

  10. 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.

    This is a pretty typical principle of law. An example often used to illustrate it: you hire an agent to go to California and buy you a house. His authority is “to negotiate to purchase a house, arrange for transfer of title, deliver the purchase price, hire painters to paint the house, purchase furniture for the house and any other thing that is beneficial” to you. The agent decides that what would be really beneficial to you would be to donate half the money to a great charity because that would make you very popular in California.

    Has the agent exceeded his authority, even if he can prove that the donation helped your reputation and business prospects in California? The answer is pretty clearly yes, because the specific examples in the list limit the general language at the and.

    The only exception to this rule in 1000 years of English and American law is the “necessary and proper” clause of the Constitution which has been taken to mean whatever our supposedly limited Federal government feels like doing today.

  11. @Joelfreak at this point, most vulnerable people have already been vaccinated. Even more so in the coming months. Stock up on some N95’s (easy to get now) if you feel the need to continue to wear a mask. Nobody will fault you for it. For everyone else who gets COVID/Wuhan it’s not a death sentence. Time to move on.

    Also – You are worried about kids under 16? They barely are affected by the disease. Before you dangle the red herring of transmitting it to someone else, read my first statement above.

  12. The mask mandate was never needed. The airlines already required masks. As Gary has mentioned earlier, government mandates often stick around longer than they are needed.

  13. You are mandated to wear seatbelts on flights, and you can’t fly on commercial carriers naked — so having to wear a mask while flying shouldn’t be such a big deal to the lovers of air travel yearning for freedom since they have to wear clothes and buckle up to fly on the regulated airlines.

  14. AL showcases his stupidity once more. I thank you for your stupidity and that of those like you. Allows me to mutate and become more infectious.

  15. I find the discussion in the comments so illuminating. While the post is about the limits of the government’s authority, 3/4 of the comments are on the issue of masks good vs. masks bad. Why bother having a constitution or indeed a democracy at all if the only principle is “things that make sense should be mandated.” A king could do that for us.

  16. The CDC regulation was issued September 4, 2020, by the Trump administration. See https://www.govinfo.gov/content/pkg/FR-2020-09-04/pdf/2020-19654.pdf. Courts in the western district of Tennessee (Tiger Lily) and the Northern District of Ohio (Skyroam) ruled it exceeds CDC’s statutory authority in Section 361 of the Public Health Service Act. Both opinions are limited to their respective jurisdictions.

    Before these opinions were handed down, President Biden issued an executive order directing the CDC to extend the moratorium. CDC director Walensky did as directed. See https://www.cdc.gov/coronavirus/2019-ncov/more/pdf/CDC-Eviction-Moratorium-01292021.pdf. The order is almost certainly illegal within the two jurisdictions noted above, though plaintiffs may have to return to court to vindicate their rights.

    The CDC rule remains a live legal issue in every other US district court until such time as a higher court ratifies or rejects the district court opinions, or a district court judge issues a nationwide injunction (which would be subject to appeal). It’s an open question whether the matter could be litigated after the moratorium expires (currently Marc h 31, 2021), which is necessary to resolve whether CDC has or lacks statutory authority for this action. Then, of course, precedent may be set for how the courts would rule on DOT mask mandates, which as Gary notes would fail if the same standard were applied.

    As a practical matter, once the CDC moratorium expires or is finally ruled unlawful, there will be a tsunami of mass evictions. The CDC regulation did not waive renters’ financial liability to pay rent. Thus, months of past rent suddenly will come due. Renters who fail to pay will be subject to eviction.

  17. @SeanNY2
    If a good King could be found, many people would take it but there really isn’t any model of a true monarchy left in democratic countries. And, in the UK, the Sovereign specifically delegates its rule to the elected government.
    The issue is really about personal responsibility. Lost in all of the discussion about covid is that there has been virtually no flu season. Guess what? the CDC strongly recommended that people take the flu vaccine last summer and fall – and the US hit record levels of flu vaccination. At least in my state, the percentage of people that got covid and had received the flu vaccine was just 7%. The covid fear mongers want to argue that all of the masking and isolation killed the flu season – but someone was unable to make a difference in covid.

    The US has the best health care system in the world for those that are willing to use it – and irrespective of costs. Big pharma has its faults but they absolutely nailed the covid vaccine.

    Maybe we’ll manage to eliminate many infectious diseases but people do have to take personal responsibility for their general health, their willingness to use proven medical technologies, and for staying away from others when one might be contagious.

    There will always be those that argue that government can solve problems which individuals can’t solve on their own – but that comes with a loss of freedom and at much higher cost and with likely worse outcomes.

    The issue isn’t really about masks – it is about personal responsibility and the role of government vs. individuals. There will and should be more legal challenges. Hopefully we don’t go through another pandemic in my lifetime but it would be nice to codify some answers for the next few generations.

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