Biden Administration Urges Judges to Lift Stay on CDC’s Airplane Mask Mandate

Travelers walk through Ronald Reagan Washington National Airport in Arlington, Va., on April 19, 2022. Stefani Reynolds/AFP via Getty Images

President Joe Biden’s administration in a court hearing on Jan. 17 urged judges on a federal appeals court to overturn a ruling from a lower court that struck down the administration’s airplane mask mandate.

The U.S. Centers for Disease Control and Prevention (CDC) had “good cause” to impose the mandate and bypass the notice- and comment period required by the Administrative Procedure Act (APA), Brian Springer, an attorney for the government, told judges of the U.S. Court of Appeals for the 11th Circuit.

At the time the mandate was imposed, in early 2021, “there were variants that had just been detected that showed signs of increased transmissibility, and people were starting to travel again,” Springer said. “In those circumstances, the CDC had good cause to issue this order, particularly when the CDC detailed the reasons why in this particular environment, namely in the transportation sector and in transportation settings, COVID had a specific tendency to spread among people who are traveling together because they’re standing together in lines and sitting together on conveyances.”

One of the judges expressed skepticism with the line of thinking, accusing the CDC of issuing “boilerplate” language to impose the mandate without a notice and comment period. Under a ruling in a separate case, boilerplate statements that COVID-19 exists and that there’s a public emergency aren’t sufficient to satisfy the “good cause” exception to the APA. Springer disagreed, saying the CDC’s statement provided rationale that met the standard.

U.S. District Judge Kathryn Kimball Mizelle, a Trump appointee, said in her 2022 ruling that the CDC violated the APA by only issuing a single conclusory sentence to support ducking the notice requirements.

She noted that at the time the order was issued, around a year had passed since the beginning of the pandemic, and COVID-19 cases in America were on the decline.

Brent Hardaway, arguing for Health Freedom Defense Fund, which brought the case, said that the mandate was “very strange” given that airplanes and many airports already had mandates in place, in addition to the decline in cases.

Does the CDC Have Authority to Mandate Masks?

Other portions of the hearing went over arguments as to whether the CDC has the authority to mandate masks.

U.S. code gives the federal government the power to enforce regulations judged as “necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession.”

The government, to enforce such measures, “may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary,” the statute says.

In striking down the CDC’s moratorium on evictions, the Supreme Court found that the agency overstepped the authority outlined in the law. But the court also said the law empowered the CDC to impose measures that “directly relate to preventing the interstate spread of disease by identifying, isolating, and destroying the disease itself.”

The decision “recognized that conventional measures to identify, isolate and destroy communicable diseases fall within the statute,” Springer said. “The CDC’s mask order was a very modest way to, and a traditional way to, prevent this interstate spread of disease that falls directly within the heartland of what the Supreme Court told us that this statute covers.”

Springer asked the court to narrow the district court’s decision from applying to all travelers to just the five individuals that brought the case. If the court agrees, it would enable the mask mandate to take effect again for virtually all Americans inside airports, airplanes, and some other transportation settings.

Mizelle has ruled that mask mandates don’t fall under sanitation and that the “other measures” were limited, based on a reading of the history of the law and court rulings.

“The mask mandate is best understood not as sanitation, but as an exercise of the CDC’s power to conditionally release individuals to travel despite concerns that they may spread a communicable disease (and to detain or partially quarantine those who refuse). But the power to conditionally release and detain is ordinarily limited to individuals entering the United States from a foreign country,” Mizelle wrote, noting that a part of the law only allows for the detention of a person traveling between the states if that person is “reasonably believed to be infected” and is actually found “upon examination” to be infected.

That means the CDC exceeded its authority in issuing the mandate, the judge said.

Hardaway, in court on Tuesday, said that the law does not give the CDC the ability to impose mask mandates, though one of the judges questioned whether that was true.

“It just seems strange to me that an agency like the Center for Disease Control doesn’t have the authority to require travelers to wear a mask when they travel as a way to prevent the spread of communicable disease in the context of a global pandemic,” the judge said. “If they don’t have that authority, what authority do they have?”

Hardaway said the eviction ruling showed why it was not odd and urged the judges to look at the law, which has been used by the government to impose various measures.

“Their reading of sanitation is basically any measure that may promote sanitation,” he said. “It’s basically going to have the same kind of sweeping implications of the rule that the Supreme Court rejected.”