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April 26, 2022

Mask mandates and appeals: Inside the Biden administration's moves

Daily Briefing

    The Department of Justice (DOJ) last week moved to appeal a federal ruling that struck down CDC's mask mandate for public transit—and legal experts say the agency may be aiming to "wipe [the ruling] off the books" rather than reverse it to reinstate masking requirements.

    Our take: 10 health policy topics—including Covid response—to watch in 2022


    Last 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, CDC on Wednesday said it believes the mask mandate remains necessary and requested 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."

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    Notably, the appeal doesn't change the current state of the repealed mask mandate, as the Biden administration did not request for a stay of the judge's ruling.

    DOJ's legal strategy for the mask mandate

    According to legal specialists, the Biden administration's approach to the mask mandate ruling may be a way to buy time to try and erase the ruling—which would uphold CDC's authority without having to reinstate the mask mandate.

    "If the government's goal was to actually have the mandate be in effect, we would have seen [the appeal process] move faster," said Stephen Vladeck, a law professor at the University of Texas. "We would expect it to be seeking emergency relief by asking [U.S. District Judge Kathryn Kimbell Mizelle] to stay her ruling and then – when she says no – by asking the Federal Court of Appeals in Atlanta to freeze her ruling pending the government's appeal."

    Instead, Vladeck said DOJ's goal may be "to wipe off of the books Judge Mizelle's ruling, striking it down," which "doesn't require the government to move nearly as quickly." He added that "it might even make more sense for the government in that case to actually go a little slowly."

    Under an obscure legal doctrine, called the Munsingwear doctrine, a case that becomes moot when it is on appeal can be sent back to the district court to not only dismiss the case, but also vacate the original ruling, which would "wipe it from the books," according to the New York Times.

    According to Vladeck, DOJ may be waiting out the mask mandate's planned expiration date on May 3 before it asks an appeals court to vacate the original ruling, although this has not been confirmed by DOJ or Attorney General Merrick Garland.

    Lawrence Gostin, a professor of global health law at Georgetown University who advised the White House on the case, had a similar assessment. "The administration's goal is a legal principle, which is to ensure that the C.D.C. has strong public health powers to fight Covid and to fight future pandemics," he said. "And it appears much less important to them to quickly reinstate the mask mandate."

    The battle over CDC's regulatory powers

    The mask mandate ruling is only the latest in a series of challenges to CDC's authority. For example, the Supreme Court last August ruled the agency had "exceeded its authority" when it authorized a nationwide eviction moratorium to reduce the spread of the coronavirus, NPR reports.

    In addition, CDC faced pushback from the cruise industry after it issued a months-long "no-sail" order and a long list of requirements before cruises could restart service. Immigration advocates also criticized CDC's order under Title 42, which turned migrants away from U.S. borders during the pandemic.

    CDC's regulatory powers "were firmly entrenched pre-COVID," said James Hodge, a health law professor at Arizona State University. "Those rules are what CDC attempted to follow. But they got tripped up on political hurdles, and got into some hot water related to their breadth and scope."

    "There's no question that the nation's public health authorities are being challenged at all levels," said Georges Benjamin, head of the American Public Health Association. "We are tying the hands of our nation's public health officials, and we need to stop and think about that because you cannot manage an emergency by committee."

    As DOJ moves forward with its appeal of the mask mandate ruling, legal experts say the biggest issue is determining who has the authority to determine which public health measures are necessary.

    "The district court judge reinterpreted the law to take away CDC's power – to say the CDC could not impose a mask mandate," said Matthew Lawrence, an associate professor at Emory University School of Law. "The really important thing about the case now is just clarifying that CDC has the power given it by Congress and the Public Health Services Act, not this more narrow, reinterpreted version of that power issued by the court."

    Although there are risks in appealing the mask mandate decision, Lawrence said that leaving it unchallenged would lead to a "precedent looming over the CDC" that significantly limits its power.

    According to Hodge, curtailing CDC's regulatory powers could lead to dangerous consequences in the future. "When the next threat hits us, everybody is going to run right back to CDC and say, 'What are you doing about this? How are you responding?'" he said. (Simmons-Duffin, "Shots," NPR, 4/22; Savage/LaFraniere, New York Times, 4/22; Huang, "Shots," NPR, 4/21)

    Health policy topics to watch in 2022

    The legislative, regulatory, and judicial outlook for health policy in 2022


    The Biden administration's first year in office was unsurprisingly dominated by the Covid-19 pandemic. While Democrats in Congress were able to pass part one of President Biden’s infrastructure package, other health care priorities were largely sidelined. As we look to 2022, there are 10 key health care topics that are ripe for congressional or regulatory action. If and how Congress and the Biden administration move on those actions will have strategic implications for industry executives across the health care ecosystem.

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