Judge Declares Federal Public Transportation Mask Mandate Unlawful

Topline

A federal judge threw out the federal government’s mask mandate for airports, airplanes and other public transportation Monday, ruling the Centers for Disease Control and Prevention exceeded its authority by imposing the mask requirement days after the agency extended it another two weeks.

A traveler wearing a face mask is seen at Ronald Reagan Washington National Airport in Arlington, … [+] Virginia, on Feb. 2, 2021.

Xinhua News Agency/Getty Images

Key Facts

U.S. District Judge Kathryn Kimball Mizelle, who was appointed by former President Donald Trump, issued a ruling that declared the mask mandate unlawful and blocked it by vacating the order and sending it back to the CDC “for further proceedings.”

The anti-mandate Health Freedom Defense Fund had sued the CDC and federal officials in July over the mask requirement, asking the court to declare the order unlawful and set it aside under the Administrative Procedure Act.

Mizelle ruled the CDC did not have authority to impose the mask mandate under the Public Health Services Act of 1944, claiming that the law only lets the CDC impose measures related to “inspection, fumigation, disinfection, sanitation, pest extermination [and]

The CDC also erred by not having an adequate public comment period before it imposed the mandate, Mizelle ruled, and said the mask mandate is “arbitrary and capricious” because the agency didn’t sufficiently explain the reasoning behind imposing it.

While the federal government had asked Mizelle to just block the mandate as it applied to the plaintiffs challenging it, the judge said she had to throw out the entire mandate because “the difficulty of distinguishing” the plaintiffs from other travelers “almost ensures that a limited remedy is no remedy at all.”

A Biden Administration official told Forbes the transportation mask mandate will no longer be enforced as a result of Mizelle’s ruling, though the federal government is still “reviewing the decision and assessing potential next steps.”

Crucial Quote

“It is indisputable that the public has a strong interest in combating the spread of [Covid-19],” Mizelle wrote in her opinion, quoting a past ruling in a different case and noting the CDC imposed its mask mandate “in pursuit of that end.” The judge wrote the court still “declares unlawful and vacates the mask mandate” anyway, however, as “our system does not permit agencies to act unlawfully even in pursuit of desirable ends.”

Surprising Fact

Mizelle was just 33 years old when she was appointed to the federal bench in 2020, and the American Bar Association gave her a rating of “not qualified” to hold the position due to her lack of experience. “Since her admission to the bar Ms. Mizelle has not tried a case, civil or criminal, as lead or co-counsel,” the ABA wrote in a letter to the Senate Judiciary Committee, noting that Mizelle was only admitted to practice law in 2012—which is a “rather marked departure” from the at least 12 years of experience that’s recommended for federal judges.

Big Number

60%. That’s the share of Harris poll respondents that said in early April they wanted the federal mask mandate to be extended. A Morning Consult poll similarly found at least three in five respondents support customers and employees wearing masks on planes, though a recent Kaiser Family Foundation poll was more split, with a narrow 51% majority saying they wanted the federal mask mandate to expire.

Key Background

The CDC first imposed its federal mask mandate soon after President Joe Biden took office in February 2021. Though the order was expected to expire Monday, the CDC announced last week it would extend the mask mandate another two weeks in light of a new rise in Covid-19 cases linked to the highly transmissible omicron BA.2 subvariant. The CDC had also said it was developing a “framework” for when masks should be required once the order expires, which might depend on factors like the rate of severe illness from Covid-19 or if new variants are emerging. The lawsuit against the order comes as the mask mandate had faced more resistance in recent months as it stayed in place even as other mask orders lifted, with 21 GOP-led states suing the Biden administration to block the mask order and airline CEOs calling for it to end in an open letter.