A looming legal battle over the federal transportation mask mandate could have implications for the government’s ability to issue sweeping rules in the future.
The Biden administration said Wednesday that it would move forward with an appeal of a federal judge’s decision this week to strike down a mask mandate on airplanes and trains.
Its move came after the Centers for Disease Control and Prevention said masks during transportation remain necessary to stop the spread of COVID-19 — even though the CDC no longer recommends forced masking in many other contexts.
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The debate over whether the Biden administration should fight to preserve the mask mandate has largely centered on whether doing so will prove politically unpopular with voters already skeptical of Biden’s record on mandates.
But the case could ultimately weaken the CDC’s authority to write broad rules in any future public health emergencies if courts agree with U.S. District Court Judge Kathryn Kimball Mizelle that the agency can’t extrapolate sweeping authority from narrow legislation.
The Health Freedom Defense Fund, the group that launched the legal challenge against the mask mandate, sued the Biden administration over the transportation mandate on behalf of a pair of women who said wearing masks on airplanes worsened their severe anxiety and presented an unfair hardship.
Lawyers for the Health Freedom Defense Fund had argued, among other things, that the CDC had overstepped the mission given to it by Congress by implementing the mask mandate.
Mizelle agreed, ruling this week that the mandate “exceeds the CDC’s statutory authority and violates the procedures required for agency rulemaking” under a law known as the Administrative Procedures Act, which lays out the steps a federal agency must take before it can issue a regulation.
Those steps include giving the public notice of a proposed rule and information about what laws give the agency the authority to write such a regulation.
Mizelle argued the CDC had issued its mask mandate in Feb. 2021 “without allowing public participation through the APA’s notice and comment procedures,” which the CDC claimed at the time it had done in the name of public health. CDC officials had argued it would not serve the public’s interest to delay the transportation mask mandate to allow the public to comment on the proposed rule.
Beyond the procedural way in which the transportation mask rule was implemented, the court case will also focus on the substance of how the CDC claimed the power to issue such an intrusive rule without Congress.
Critics of Mizelle’s ruling have focused on how the federal judge interpreted the CDC’s reliance on the Public Health Services Act, a 1944 law that the agency cited as giving it the authority to issue the transportation mask mandate.
The language of the provision in question states that health authorities “may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings and other measures, as in his judgment may be necessary.”
The federal judge characterized the government’s efforts to defend using the provision as an effort to pass off the mask mandate as a “sanitation” measure, which critics have dismissed as a misreading of the government’s argument.
But the judge said masking rules don’t fall within any widely accepted definitions of the word “sanitation” and thus go beyond what lawmakers authorized public health officials to do in the original law.
Mizelle noted that the Public Health Services Act has rarely been used before except to quarantine sick individuals or limit the sale of animals that tend to transmit diseases, “at least until recently.”
“Within the past two years, the CDC has found within [the Public Health Services Act] the power to shut down the cruise ship industry, stop landlords from evicting tenants who have not paid their rent, and require that persons using public conveyances wear masks,” Mizelle wrote in her ruling.
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The Supreme Court agreed in August with the argument that the CDC overstepped its authority by extending the eviction moratorium last year.
Justices said the provision of the Public Health Services Act that the CDC used to justify its COVID-19 measures had rarely been used outside of very limited circumstances and that it did not support forcing landlords to carry tenants who haven’t paid rent.
The Supreme Court’s previous ruling on a similar interpretation of the same statute could spell trouble for the Biden administration’s efforts to argue that, in a similar context, use of the statute is justified.