Mandatory masking for U.S. travelers still remains up in the air even after a federal judge struck down the Centers for Disease Control and Prevention’s (CDC) Mask Order on April 18.
Florida District Court Judge Kathryn Kimball Mizelle issued a 59-page order to vacate the CDC’s federal mask mandate, ruling that the edict “exceeded the CDC’s statutory authority, improperly invoked the good cause exception to notice and comment rulemaking, and failed to adequately explain its decisions.”
The CDC’s mandate was based on Executive Order 13998, issued by President Joe Biden one day after inauguration on Jan. 21, 2021. The EO directed the HHS, FAA, and TSA to immediately implement a mandatory masking mandate at airports and on aircraft, trains, public boats, and public transportation “in compliance with CDC guidelines.”
‘Arbitrary and capricious’
Judge Mizelle ruled that the CDC’s directive was “arbitrary and capricious” in light of the requirements of the Administrative Procedure Act because, “The only reason the Mandate cites is the public health emergency caused by COVID-19,” and “irrespective of whether the CDC made a good or accurate decision, it needed to explain why it acted as it did.”
The Judge also ruled that the directive should be classified as a rule or regulation, rather than an agency order, meaning implementation is required to undergo a lengthy public comment and screening process before taking effect.
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Mizelle found that “good cause to suspend notice and comment must be supported by more than the bare need for the regulations.”
“Because our system does not permit agencies to act unlawfully even in pursuit of desirable ends, the Court declares unlawful and vacates the Mask Mandate,” Mizelle concluded.
Adding drag
When news of the verdict went public, while many air travelers were widely found rejoicing the relaxation of restrictions, not everyone shared the sentiment.
During a same-day press conference, White House Press Secretary Jen Psaki, facing a barrage of questions from reporters, called Mizelle’s verdict “obviously a disappointing decision,” reiterating that “the CDC continues recommending wearing a mask in public transit.”
Psaki on April 19 deferred to the HHS and DOJ to decide on whether to appeal, but stated that “there are still a lot of people in this country who still want to have masks in place.”
For the federal government, the intervention by a federal court comes at awkward timing.
On April 13, the CDC extended the mandate, which was set to expire, for 15 days until May 3 “while CDC assesses the potential impact of the rise of cases on severe disease, including hospitalizations and deaths, and healthcare system capacity.”
On April 19, the DOJ announced in a formal statement that both it and the CDC “disagree with the district court’s decision and will appeal.”
However, the Justice Department added the caveat: “subject to CDC’s conclusion that the order remains necessary for public health.”
Mixedmessaging
The same day, late-night left-leaning comedy personality Stephen Colbert expressed his distaste for Mizelle’s ruling.
“No surprise, the ruling comes from a Tampa-based federal judge…You can’t let Florida make health decisions for the entire country! That’s not smart. The Florida food pyramid is just gator jerky and meth!”
Referring to Mizelle as the “genius judge behind this ruling,” Colbert took aim at her relatively young age, 35, and the fact she was appointed by Donald Trump “after he lost the 2020 election.”
Colbert also referred to Mizelle as a “dummy.”
However, an April 19 segment by CNN was substantially more level headed.
During an interview with Dr. Amesh Adalja, Senior Scholar at the Johns Hopkins Center for Health Security, the expert stated that the CDC’s travel mask mandate “always seemed a little bit paradoxical to me that this was one place where the mask mandate from the federal government stayed in place where everything else was mask-free.”
Regarding the May 3 extension by the CDC to decide if the mandate will be considered still scientifically required, Adalja questioned, “It’s unclear to me what would have changed in 15 days.”
“Maybe they were trying to buy some time, but I don’t think it really makes that much of a difference whether the mask mandate was lifted yesterday or if it’s lifted on May 3, as it was scheduled,” he stated.
However, although the TSA, a federal body, is no longer enforcing mandatory masking, some state level agencies, such as the Port Authority of New York and New Jersey announced on April 19 they would continue to enforce state public health guidance at several major facilities, such as JFK International, LaGuardia Airport, and New York Stewart International Airport.
Likewise, Chicago, the San Francisco Bay Area, Los Angeles, and Philadelphia are also keeping mandatory masking in place for public transit users, according to reports.
