The Justice Department on Wednesday appealed a ruling by a federal judge that struck down the mask mandate for mass transportation, following a recommendation by the US Centers for Disease Control and Prevention.
“It is CDC’s continuing assessment that at this time an order requiring masking in the indoor transportation corridor remains necessary for the public health,” the CDC said in a statement. “CDC will continue to monitor public health conditions to determine whether such an order remains necessary. CDC believes this is a lawful order, well within CDC’s legal authority to protect public health.”
In the wake of Monday’s ruling, the Justice Department had considered whether to fight a court decision that caught much of the administration, airline industry, local public transit departments and everyday Americans off-guard. The appeal means that the administration will head to a higher court to extend the mandate – despite the fact that many airlines and public transit systems have already decided to make masks optional following the court ruling.
The Justice Department’s appellate filings didn’t immediately include a request for a stay seeking to put the court order on hold and reinstate the mask mandate, a standard move in emergency circumstances.
That’s an indication that the legal effort is less about the current Covid-19 conditions and more about trying to preserve the CDC’s authority in the future.
White House press secretary Jen Psaki, speaking to CNN+’s Chris Wallace Wednesday night, said the appeal was important for preserving the CDC’s future public health authority.
“That’s important for two reasons: One because we think it’s entirely reasonable, as does the Department of Justice, for the CDC, the health and data experts – health experts most importantly in our administration – to be able to have that time to evaluate. But also because they want to fight to ensure the CDC’s authority and ability to put in mandates in the future remains intact,” Psaki said.
She added: “We know there’s going to be ups and downs in this pandemic, we’re all ready for it to be over. But we want to ensure that our public health experts are able to take steps, if needed, in the future.”
Risky move
The appeal is a risky move that could limit the government’s ability to make similar mandates in the future. If the 11th US Circuit Court of Appeals – which oversees appellate challenges from Florida, where the federal judge who struck down the mandate sits – upholds the ruling striking down the mandate, it would be precedent for all the other federal courts in that circuit, which covers the Southeast.
The DOJ lawyers tasked with defending the CDC’s mask mandate authority have warned Biden administration officials that continuing to push the legal fight over the mask mandate could backfire, if the conservative-leaning appeals court upholds the order.
The case could then be appealed to the Supreme Court, where conservative justices have been ruling against Covid-19 measures since the start of the pandemic. In January, the high court invalidated a vaccine requirement for large companies, and last summer it struck down a moratorium on evictions. A Supreme Court ruling upholding the decision to strike down the mask mandate would make the Florida judge’s conclusions about CDC authority binding nationwide.
White House emphasized ‘choice’ on masks earlier Wednesday
Earlier Wednesday, Psaki said Americans have a “choice” as to whether they will wear a mask on an airplane following a court ruling banning the federal mask mandate on planes, trains and other public transportation.
“People are not legally bound to wear masks. So, it is a point in time where it is up to people, it is their choice,” Psaki told reporters, later adding that the administration continues to recommend “everyone wear masks on a plane” per guidance from the US Centers for Disease Control and Prevention.
When asked about President Joe Biden’s comments Tuesday that people should decide for themselves whether to wear masks on an airplane, Psaki said that Biden “was answering the question quite literally,” reiterating that the White House disagrees with the judge’s decision and that Biden and others traveling with him would continue to wear a mask in flight.
“We are not implementing the mask mandate because of the court order, which we disagree with, while he is still abiding by CDC guidance. So, we recommend Americans do that across the country. They’re still recommending people wear masks on airplanes,” Psaki said, noting that travelers aboard Air Force One Tuesday on a trip to New Hampshire all wore masks.
Psaki said that public polling “does not actually show that there is a universal view of people getting rid of masks,” but that that “doesn’t matter” to the White House as it makes its decisions “based on public health and data.”
The Biden Justice Department said on Tuesday it would appeal the court ruling that struck down the federal mask mandate for travelers – but only if the CDC determined the mandate is still necessary to protect public health.
Before the Florida judge’s ruling, the Biden administration had extended the requirement for masks on planes, trains, and inside airports through May 3. The CDC was set to assess whether the mandate was still needed, and Psaki later suggested that assessment could be finished before May 3.
“I would expect you’ll hear from the CDC very soon. And I don’t think it’s at the end of 15 days, in terms of their expectation and ask for an appeal,” Psaki said.
Pressed on why the Justice Department didn’t immediately appeal the ruling or seeking an emergency stay, Psaki pointed to the CDC’s need to gather more data on the BA.2 subvariant of Covid-19, the original reason for the extension of the mandate last week.
This story has been updated with additional developments on Wednesday.