Biden administration argues for transportation mask mandate in appeals court
Abigail Adcox
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The Biden administration argued on Tuesday that it had the authority to require airline passengers and other travelers to wear masks on mass transit, nine months after a federal judge in Florida vacated the federal mask mandate.
The Justice Department claimed that the Centers for Disease Control and Prevention had the legal authority to immediately require masks on planes, trains, and buses due to the COVID-19 pandemic before a panel of the 11th U.S. Circuit Court of Appeals.
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“Wearing a mask was one of the most modest and most effective means available in early 2021 to combat the spread of COVID-19 and to allow air travel to resume safely. The CDC had authority to issue this order and to do so, to make the order effective immediately and the district court erred in ruling otherwise,” an attorney for the Justice Department argued.
A lawyer on behalf of the Health Freedom Defense Fund and two individual plaintiffs, Ana Daza and Sarah Pope, who had filed the original lawsuit, argued that the federal mask mandate was arbitrary and that if the original decision was overturned, it could mean that similar mask mandates “deemed necessary to protect public health” could be put in place in the future.
“This appeal is not about an urgent matter of public health. If the mask order had been such an urgent matter of public health, you would have expected CDC to have applied for a stay to the district court’s ruling,” an attorney representing the Health Freedom Defense Fund said. “CDC promulgated a rule of unprecedented scope. And for the first time claiming authority to directly govern the lives of every member of the traveling public without bothering to explain its statutory authority.”
A panel of the 11th U.S. Circuit Court of Appeals pushed back on the Biden administration’s argument that the CDC had “good cause” to forgo a provision of the federal Administrative Procedure Act, which requires that the government give the public proper time to review and comment on the mask rule before it was put in place, typically 30 days notice.
“The problem I’m having with your entire argument on this issue is that it seems like you’re saying the agency can just say we think this is a good idea,” one judge said.
The Justice Department contended that the appeals court should at least clarify that the CDC had the authority to issue the mask mandate, regardless if it sides with the government’s decision to make the mandate effective immediately.
“You can imagine the next pandemic, there was an outbreak of measles or SARS and the CDC would want to and need to take swift action in order to control such a pandemic in the future,” the attorney for the Justice Department noted. “I think the important thing here is that the potential collateral estoppel effect of the district court’s ruling could tie up future CDC actions.”
U.S. District Judge Kathryn Kimball Mizelle in Tampa had ruled last April that, while the CDC’s premise for requiring masks to reduce transmission of the disease and limit the number of hospitalizations had merit, it was “not sufficient to establish good cause.”
“The court concludes that the Mask Mandate exceeds the CDC’s statutory authority and violates the procedures required for agency rulemaking under the [Administrative Procedure Act],” Mizelle, who was appointed by former President Donald Trump, wrote in her order.
The lawsuit was first brought forward by the Health Freedom Defense Fund and Daza and Pope, who argued that masking on airlines caused them frequent panic attacks and anxiety.
The CDC’s transportation mask mandate was in place from January 2021 to April last year, when Mizelle’s ruling threw it out. It was first put in place at a point when many states still had masking guidelines.
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By April 2022, the mask mandate was becoming exceedingly unpopular within the travel industry, with airline groups lobbying to end the requirement amid increased vaccination rates and lower COVID-19 case counts.
It’s unclear what it would mean if the appeals court overturns Mizelle’s ruling, as most masking requirements have been relaxed across the country for months. The Justice Department has argued the initial ruling should have only granted exemptions to the mask mandate for the plaintiffs in the original lawsuit.