• Posted April 21, 2022

U.S. Justice Department Appeals Ruling Striking Down Mask Mandate on Planes

The Biden administration on Wednesday appealed a Florida ruling that struck down a federal mask mandate for planes, trains and other forms of public transportation.

The announcement, made by the U.S. Centers for Disease Control and Prevention, came after the agency deemed the mandate was still needed to protect Americans from the spread of COVID-19.

"It is CDC's continuing assessment that at this time an order requiring masking in the indoor transportation corridor remains necessary for the public health," the statement read. "CDC will continue to monitor public health conditions to determine whether such an order remains necessary. CDC believes this is a lawful order, well within CDC's legal authority to protect public health."

This latest legal move does not immediately change the status of the mask mandate, which cannot be reinstated unless the administration wins a stay of the order striking it down, The New York Times reported. Legal experts said the Biden administration would likely ask for a stay, and the court could decide whether to grant it within days.

But legal experts noted the appeal carries risks.

"This sets up a clash between public health and a conservative judiciary, and what's riding on it is the future ability of our nation's public health agencies to protect the American public," Lawrence Gostin, an expert in public health law at Georgetown University, told the Times.

The battle lines were first drawn three days ago when Kathryn Kimball Mizelle, a Federal District Court judge in Tampa appointed by former President Donald Trump, nullified the mask mandate for public transportation. That prompted major airlines and Amtrak to allow passengers to forgo masks.

If the case is appealed to the Court of Appeals for the 11th Circuit in Atlanta, it could limit the CDC's authority in the southeastern United States. And a majority of judges on that court were appointed by Trump, the Times noted. The U.S. Supreme Court also has a 6-3 majority of conservative judges.

"As tempting as it is to appeal it, because it's a ridiculous ruling, the bigger issue is that you need to reserve the ability for the CDC to act in case we have a big outbreak in the fall or the winter," said Andrew Slavitt, a former senior health adviser to President Joe Biden who once helped run the administration's COVID-19 response.

"Trump appointed 234 federal judges," Slavitt told the Times, "and if you end up there [Atlanta] or in the Supreme Court, you could really damage your ability to respond to the pandemic in the future."

The mandate was already set to expire on May 3. The CDC initially imposed the mandate in early 2021, but had extended it most recently on April 13 while planning to evaluate the impact of BA.2, a subvariant of Omicron that now accounts for more than 74% of all U.S. COVID cases.

"The country clearly wants to move on," David Axelrod, a Democratic strategist and senior adviser to President Barack Obama, told the Times. "Mandatory masking is a volatile issue. So, my instinct is that the path of least resistance would be to stand down, on the grounds the clock is quickly running out anyway."

For Tori Emerson Barnes, an official with the U.S. Travel Association, a trade group, the mandate had outlived its usefulness.

"Masks were critically important during the height of the pandemic, but with low hospitalization rates and multiple effective health tools now widely available, from boosters to therapies to high-quality air ventilation aboard aircraft, required masking on public transportation is simply out of step with the current public health landscape," she said in a statement.

Meanwhile, the Monday ruling surprised and frustrated White House officials.

"CDC scientists had asked for 15 days to make a more data-driven durable decision," Dr. Ashish Jha, the new White House coronavirus response coordinator, said on Twitter. "We should have given it to them. But I'll continue to follow CDC guidance and mask up on planes."

While support for mask mandates has dropped with the availability of vaccines and booster shots, as well as the experiences of people who survived COVID-19, a majority of Americans are still in favor of continued mandates because of the risk of the virus to immunocompromised people, and because children younger than 5 are still not eligible for available vaccines.

More information

The U.S. COVID website has more on COVID-19.

SOURCES: U.S. Centers for Disease Control and Prevention, statement, April 20, 2022; The New York Times