Justice Dept. Appeals to Reinstate Transportation Mask Mandate

The Centers for Disease Control and Prevention ruled the mandate “necessary,” but an appeal risks creating a precedent that could permanently constrain the agency.

Justice Dept

WASHINGTON — The Biden administration on Wednesday appealed a federal court ruling striking down the mask requirement for passengers on planes, trains, buses and other public transportation after the Centers for Disease Control and Prevention concluded that the mandate was “necessary” to protect the public from the spread of the coronavirus.

The decision came two days after a federal judge in Florida struck down the mask mandate, and set off a rush among airlines, some public transit systems and even Uber and Lyft to abandon mask requirements. Some pilots announced the abrupt change midflight, prompting celebration — but also anxiety — among virus-weary passengers.

While the C.D.C. wants to keep the mandate intact, it is also pressing the appeal to preserve its public health powers. But doing so is potentially risky; if the ruling striking down the mandate is upheld, that could permanently weaken the agency’s authority.

Even if the Biden administration wins the case, there will be backlash among Americans who felt liberated by the lifting of the mask requirement, which also applied to transportation hubs like airports, seaports and train stations.

The legal moves do not change the status of the mask mandate, which cannot be reinstated unless the administration wins a stay of the Federal District Court’s order, and there was little immediate sign that airlines would reintroduce their own. Legal experts said that it was likely that the administration would ask for a stay, and that if it does, the court could decide whether to grant it within days.

The Justice Department’s appeal also comes as cases, though not hospitalizations and deaths, are rising in a majority of states, as the BA.2 subvariant threatens to unleash another deadly wave.

The mandate had been in place since shortly after President Biden took office in January 2021, and was set to expire on April 18. But despite pressure from airlines, the hospitality industry and Republican lawmakers to lift the rule, the C.D.C. extended it until May 3 to give public health experts more time to assess whether it should be continued.

The U.S. Court of Appeals for the 11th Circuit, which will hear the case, has a conservative bent, and the case could end up before the Supreme Court, which is also dominated by conservatives.

“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,” said Lawrence O. Gostin, an expert in public health law at Georgetown University. “The risk is that you will get a conservative 11th Circuit ruling that will so curtail C.D.C.’s powers to fight Covid and future pandemics that it will make all Americans less safe and secure.”

Jen Psaki, the White House press secretary, said on Wednesday in an interview with Chris Wallace of CNN+ that the appeal was important not only to preserve the mask requirement but also “to ensure the C.D.C.’s authority and ability to put in mandates in the future remains intact.”

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

“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.

In the 59-page decision she issued on Monday, Judge Kathryn Kimball Mizelle, who was appointed by President Donald J. Trump, voided the transportation mandate on several grounds, including that the agency had exceeded its legal authority under the Public Health Service Act of 1944.

On Tuesday, after a day of deliberations inside the White House, the Department of Justice announced that it intended to appeal the ruling — but only if the C.D.C. decided that the mandate was still necessary. On Wednesday evening, the C.D.C. made its position clear.

“C.D.C. believes this is a lawful order, well within C.D.C.’s legal authority to protect public health,” the agency said in a statement, adding that it “continues to recommend that people wear masks in all indoor public transportation settings.”

The statement also said, “When people wear a well-fitting mask or respirator over their nose and mouth in indoor travel or public transportation settings, they protect themselves, and those around them, including those who are immunocompromised or not yet vaccine-eligible, and help keep travel and public transportation safer for everyone.”

In mid-April, after the C.D.C. announced it was extending the mandate through May 3, Dr. Ashish K. Jha, the new White House Covid response coordinator, said in an interview in that the additional time would allow the C.D.C. to assess whether BA.2, a subvariant of the coronavirus, would become a “ripple or a wave” in the United States. Experts said Wednesday that the question remained unresolved.

The C.D.C. actually has very limited regulatory authority; by and large, the power to impose public health restrictions lies with state and local governments. But legal experts agree that interstate transportation is a notable exception. In interviews, several said Judge Mizelle badly misread the law.

When it passed the Public Health Service Act of 1944, Congress authorized the C.D.C. to make and enforce regulations that in its judgment “are necessary to prevent the introduction, transmission or spread of communicable disease.”

The law also suggests some steps the C.D.C. could take to prevent the spread of disease, including sanitation, disinfection and pest extermination.

Judge Mizelle construed those suggestions as the C.D.C.’s only options — a narrow interpretation that “fundamentally misunderstands the scope of authority allowed to C.D.C.,” said James Hodge, the director of the Center for Public Health Law and Policy at Arizona State University. She also erred in likening the mask mandate to a quarantine, he said.

The judge also faulted the C.D.C. for failing to solicit public comment on the mask order — a finding that Professor Gostin said “defies common sense.” While administrative law requires public comment for most federal actions, it also allows for exceptions for “good cause.”

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