.Justice Dept. Appeals to Reinstate Transportation Mask Mandate

While the Centers for Disease Control and Prevention wants to keep the mandate intact, it is also pressing the appeal to preserve its public health powers

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 CDC 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 U.S. 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.

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The Justice Department’s appeal also comes as cases, although 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 Joe Biden took office in January 2021, and was set to expire April 18. But despite pressure from airlines, the hospitality industry and Republican lawmakers to lift the rule, the CDC extended it until May 3 to give public health experts more time to assess whether it should be continued.

The 11th U.S. Circuit Court of Appeals, 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 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 CDC’s powers to fight COVID and future pandemics that it will make all Americans less safe and secure.”

White House press secretary Jen Psaki said 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 CDC’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 Monday, Judge Kathryn Kimball Mizelle, who was appointed by President Donald 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 CDC decided that the mandate was still necessary. On Wednesday evening, the CDC made its position clear.

“CDC believes this is a lawful order, well within CDC’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 CDC announced it was extending the mandate through May 3, Dr. Ashish K. Jha, the new White House COVID response coordinator, said in an interview that the additional time would allow the CDC 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 CDC 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 Mizelle badly misread the law.

When it passed the Public Health Service Act of 1944, Congress authorized the CDC 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 CDC could take to prevent the spread of disease, including sanitation, disinfection and pest extermination.

Mizelle construed those suggestions as the CDC’s only options — a narrow interpretation that “fundamentally misunderstands the scope of authority allowed to CDC,” said James Hodge, 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 CDC for failing to solicit public comment on the mask order — a finding that Gostin said “defies common sense.” While administrative law requires public comment for most federal actions, it also allows for exceptions for “good cause.”

But while Gostin said the CDC would have an “extraordinarily good case” on appeal, he said an alternative would have been for the agency to let the current mandate lapse, and then seek to reinstate it at a later date should cases rise — and defend the new order in court at that time if necessary.

Some public health experts argued against extending the transportation mask mandate, so as not to trigger an appeal of Mizelle’s ruling and potentially lead to a higher court permanently constraining the CDC’s powers.

“From a pure public health perspective, I would say let it go, it’s not worth the fight,” said Dr. Carlos del Rio, an infectious disease specialist at Emory University in Atlanta.

At the same time, it could be difficult for the White House and the CDC director, Dr. Rochelle Walensky, to rationalize the decision to appeal the judge’s ruling, given that they have increasingly cast mask wearing as a matter of personal choice. On Tuesday, Biden was noncommittal when asked if people should wear masks on planes, saying that the decision to do so was “up to them.”

Just two months ago, the CDC changed its guidelines in a way that made it far less likely that a county would be considered high risk. Only in high-risk areas does the agency now recommend indoor mask wearing for everyone. It says that those who have immune deficiencies or are otherwise at high risk for severe illness should talk to their health care providers about whether to wear a mask in areas of moderate risk.

Under the new regulations, the CDC said counties should decide the level of risk for their residents based on the number of new COVID-related hospital admissions over the past week, the percentage of hospital beds occupied by COVID-19 patients and the rate of new cases over the past week.

“We want to give people a break from things like mask wearing when these metrics are better,” Walensky said then. “And then have the ability to reach for them again should things worsen.”

Public health experts say it is up to Walensky to preserve her agency’s ability to encourage, or even require, mask wearing in the face of any future deadly waves of the virus.

“CDC shouldn’t let the drama of this judicial opinion change what it would have done,” said Dr. Celine Gounder, an infectious disease specialist and editor at large for public health at Kaiser Health News. “The important thing is that she is likely to be facing another spike of hospitalizations in the future, another dangerous variant, and she absolutely needs to keep that tool in her pocket — the tool of masking.”

This article originally appeared in The New York Times.

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