If CDC Finds Mask Mandate on Planes Still Needed, Appeal of Ruling Striking It Down Is Likely

WEDNESDAY, April 20, 2022 (HealthDay News) -- The U.S. Department of Justice said Tuesday that it will appeal a Florida judge's ruling that struck down a federal mask mandate on airplanes and other forms of public transportation only if the U.S. Centers for Disease Control and Prevention determines such a mandate is still needed.

"The Department of Justice [DOJ] and the Centers for Disease Control and Prevention disagree with the district court’s decision and will appeal, subject to CDC’s conclusion that the order remains necessary for public health," DOJ spokesman Anthony Coley said in a statement. "The Department continues to believe that the order requiring masking in the transportation corridor is a valid exercise of the authority Congress has given CDC to protect the public health."

Kathryn Kimball Mizelle, a Federal District Court judge in Tampa appointed by former President Donald Trump, nullified the mandate on Monday, which prompted major airlines and Amtrak to allow passengers to forgo masks.

The DOJ announcement was a signal that the government doesn't accept the judge's narrow interpretation of the CDC’s legal authority under the Public Health Service Act of 1944, the New York Times reported.

But appealing the ruling could be risky, the newspaper noted. While a district court ruling is not binding precedent, an appeals court ruling is, at least for its region.

If the case is appealed to the Court of Appeals for the 11th Circuit in Atlanta, it could limit the CDC’s authority in the southeastern United States. And a majority of judges on that court were appointed by Trump, the Times noted. The U.S. Supreme Court also has a 6-3 majority of conservative judges.

"As tempting at it is to appeal it, because it's a ridiculous ruling, the bigger issue is that you need to reserve the ability for the CDC to act in case we have a big outbreak in the fall or the winter," said Andrew Slavitt, a former senior health adviser to President Biden who once helped run the administration's COVID-19 response.

"Trump appointed 234 federal judges," Slavitt told the Times, "and if you end up there [Atlanta] or in the Supreme Court, you could really damage your ability to respond to the pandemic in the future."

One public health expert agreed.

"You are in the position of having two horrible choices," said Lawrence Gostin, who specializes in public health law at Georgetown University. "One choice is to risk forever taking away CDC's powers if this goes up to the 11th Circuit and ultimately the Supreme Court.

"And on the other hand, if you let what I consider to be a lawless decision by this judge go forward, then CDC is going to be gun-shy about doing things that it deems effective for the protection of the American public," Gostin said to the Times.

The mandate was already set to expire on May 3. The CDC initially imposed the mandate in early 2021, but had extended it most recently on April 13 while planning to evaluate the impact of BA.2, a subvariant of Omicron that now accounts for more than 74% of all U.S. COVID cases.

"The country clearly wants to move on," David Axelrod, a Democratic strategist and senior adviser to President Barack Obama, told the Times. "Mandatory masking is a volatile issue. So, my instinct is that the path of least resistance would be to stand down, on the grounds the clock is quickly running out anyway."

Senior administration officials told the Times that the Monday ruling surprised and frustrated White House officials. White House Press Secretary Jen Psaki said the decision should have been up to the CDC, not the courts. And CDC officials had felt the 15-day mask extension on public transportation was reasonable, the Times reported.

"CDC scientists had asked for 15 days to make a more data-driven durable decision," Dr. Ashish Jha, the new White House coronavirus response coordinator, said on Twitter. "We should have given it to them, but I'll continue to follow CDC guidance & mask up on planes."

While support for mask mandates has dropped with the availability of vaccines and booster shots, as well as the experiences of people who survived COVID, some are still in favor of continued mandates because of the risk of the virus to immunocompromised people, and because children younger than 5 are still not eligible for available vaccines.

More information

The U.S. COVID website has more on COVID-19.

SOURCES: U.S. Department of Justice, news release, April 19, 2022; New York Times