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April 21, 2022

DOJ is appealing the decision on CDC's public transit mask mandate—here's why that worries some experts

Daily Briefing

    The Department of Justice (DOJ) on Wednesday filed an appeal of a federal judge's ruling that struck down CDC's mask mandate for public transportation, but some experts worry that the appeal could ultimately undermine CDC's authority to enact public health measures.

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    DOJ files appeal of ruling on mask mandate

    On Monday, a federal judge in Florida struck down the Biden administration's mask mandate for airplanes and mass transit, arguing CDC overstepped its authority with the requirement. This led major airlines and other transportation services to no longer require their staff or passengers to wear masks.

    However, DOJ on Tuesday said it intended to appeal the ruling if CDC deemed it necessary, saying the department and CDC "disagree with the district court's decision and will appeal, subject to [CDC's] conclusion that the order remains necessary for public health."

    On Wednesday, CDC said it believes the mask mandate remains necessary and requested that DOJ make an appeal.

    "[A]t this time an order requiring masking in the indoor transportation corridor remains necessary for the public health," CDC said in a statement. "CDC believes this is a lawful order, well within CDC's legal authority to protect public health."

    CDC added that it will continue monitoring public health conditions "to determine whether such an order remains necessary."

    Following CDC's announcement, DOJ filed a notice of appeal. "In light of today's assessment by the CDC that an order requiring masking in the transportation corridor remains necessary to protect the public health, the Department has filed a notice of appeal," DOJ said.

    Notably, the appeal doesn't change the current state of the repealed mask mandate, as the Biden administration did not request for a stay of the judge's ruling.

    Could the appeal undermine CDC's authority?

    Some experts expressed concern that the appeal, which could ultimately go to the Supreme Court, might end up restraining CDC's authority to respond to and enact future public health measures.

    "There's a risk that if you appeal, you turn what is a bad judgment on a policy you're phasing out anyway, but that sets no precedent, into the law of the land that is now going to constrain you in other cases," said Michael Dorf, a professor at Cornell Law School.

    Dorf added that he believes the ruling is "fairly radical administrative law. But it's really radical administrative law for which there might be five votes in the Supreme Court."

    Daniel Walters, a law professor at Penn State University, was critical of the ruling, but said he wasn't surprised by it, given what he believes is the effect of the Supreme Court's ruling in August on CDC's eviction moratorium.

    "The problem here is that the Supreme Court is not stepping in to do quality control. There are a variety of reasons for that … but the biggest reason seems to be that a majority of the Supreme Court justices agree with the bottom line," Walters said. "In other words, they might not get there the same way that the district court did, but they would still get there, so they're not going to disturb even a highly problematic opinion."

    However, other experts argued CDC has the authority to issue its mandate and that the appeal is necessary to protect the agency's authority to enact public health measures in the future.

    "If CDC can't impose an unintrusive requirement to wear a mask to prevent a virus from going state to state, then it literally has no power to do anything," said Lawrence Gostin, faculty director of the O'Neill Institute for National and Global Health Law at Georgetown University, adding that the mask mandate is "a textbook example of CDC's mandate and its legitimate powers."

    "One day there will be a really scary virus that will come to the shores of the U.S. and we will look to the CDC to protect us and what we'll find is an agency that is frightened to act, gun-shy, and always looking over its shoulder," Gostin said.

    "It is essential that CDC ensures its authority to protect the public's health," said Georges Benjamin, executive director of the American Public Health Association. "The judge's decision is so poorly reasoned and just plain wrong. It needs a more experienced juridical review."

    White House press secretary Jen Psaki agreed on the necessity of the appeal, saying it was important to not only preserve the mask mandate but "to ensure the C.D.C.'s authority and ability to put in mandates in the future remains intact." (Whitehead/Appleby, Kaiser Health News, 4/21; Stolberg, New York Times, 4/20; Chen, Axios, 4/20; Garrison et al., USA Today, 4/21; Mahr, Politico, 4/20; Ali, The Hill, 4/20; Kruzel/Gangitano, The Hill, 4/20; Gurman/McKay, Wall Street Journal, 4/20)


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