DOJ Will Appeal Ruling that Vacated Mask Mandate on Airlines

Despite sending mixed signals this week, the U.S. Department
of Justice will mount an appeal of Monday’s ruling by a federal court in
Florida that struck down the Biden Administration’s mandate that travelers
inside airports and on planes, trains and public transportation must wear masks
covering their nose and mouth to prevent spread of the Covid-19 virus. U.S.
District Judge Kathryn Kimball Mizelle for the Middle District of Florida on
Monday determined the policy was “unlawful” and that the mandate
“violates the procedures required for agency rulemaking,” according
to her ruling.

The presence of an appeal itself will not change the
enforcement of the current ruling, which saw all major U.S. airlines, Amtrak and companies like Lyft and Uber move immediately to lift masking requirements.
However, the administration could move to request a stay on that ruling while
the appeal proceeds, in which case masking could return on planes and trains.
It is not clear if the Biden Administration will make such a move during the appeals
process—or whether such a request would be granted.

The case is set to be heard by the U.S. Court of Appeals for
the 11th Circuit in Atlanta, which leans conservative since 2018 when the bench
was “flipped” in favor of Republican-appointed judges. Currently, the
11th Circuit has four Democrat-appointed judges and seven
Republican-appointed judges, with a vacancy currently awaiting confirmation for
a Biden appointee. Such political alignments are not a guarantee of the
position a judge will take on a particular issue but could be considered an
indication of how certain politically-charged issues like masking will fare in
the circuit.

The DOJ delayed an immediate decision on whether to appeal
the ruling, deferring to advice from the U.S. Centers for Disease Control and
Prevention. The health agency in a statement Wednesday 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.”

At stake in the legal battle is not just the current mask
mandate. A ruling against the CDC in this case ultimately could limit the power
of the agency to implement future health and disease prevention policies at the
federal level and its ability to respond to urgent public health threats.

Twenty-one states led by Florida filed the lawsuit after the
Biden Administration on advice of the CDC. extended a March expiration date for
the federal mask mandate to April 18. Just before the extended deadline, the administration
again extended the mandate to May 3, as Covid-19 cases began to rise in the
United States pushed by the BA. 2 variant and other subvariants.

According to the New York Times Covid-19 tracker, which
considers data from state and local health agencies as well as U.S. Department
of Health and Human Services, virus cases in the U.S. are up 49 percent over
the last seven days, but hospitalizations and deaths are slightly down.

The U.S. Travel Association weighed in on the issue, with
the following statement issued by EVP of public affairs Tori Emerson Barnes: “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.”

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