Health Group Urges Appeals Court Not to Reinstate CDC’s Travel Mask Mandate

People gather their luggage after arriving at Miami International Airport on a plane in Miami, Fla., on Feb. 1, 2021. Joe Raedle/Getty Images

The group that successfully won an injunction against the U.S. government’s mask mandate on airplanes is asking a federal appeals court not to allow the mandate to go back into effect.

The mask mandate is “procedurally invalid” because the U.S. Centers for Disease Control and Prevention (CDC), before it imposed it, did not give notice or allow public comments as mandated by law, the Health Freedom Defense Fund wrote in the 77-page filing, lodged Aug. 1 with the U.S. Court of Appeals for the 11th Circuit.

The mandate is also arbitrary and capricious, because the CDC “ignored its own data on the known harms of long-term mask-wearing, and failed to heed its own rule for promulgating interstate regulations,” the group added.

It urged the appeals court not to grant a motion by the government to overturn a lower court ruling.

U.S. District Judge Kathryn Kimball Mizelle, a Trump appointee, ruled in April that the CDC violated the law by not giving notice or allowing public comments before imposing the mandate in February 2021.

While the agency cited the public health emergency over the COVID-19 pandemic, the pandemic had been ongoing for nearly a year and COVID-19 cases were decreasing at the time, undercutting the justification, Mizelle said.

She also found that the mandate exceeded the CDC’s statutory authority, dismissing claims that the Public Health Services Act of 1944 gave it the power to regulate travelers.

The law states in section a: “The Surgeon General with the approval of the [health] Secretary is authorized to make and enforce such regulations as in his judgment are 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. For purposes of carrying out and enforcing such regulations, the Surgeon General 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.”

Government’s Brief

Two days after the ruling, the Biden administration officially announced its intention to appeal, based on a fresh CDC determination that a mask mandate on planes and other modes of federally-regulated transportation was necessary to protect public health.

The government’s actual brief was filed in May.

Mizelle erred in her ruling because the public health act authorizes the CDC to require measures that relate to preventing the spread of disease, U.S. Department of Justice lawyers argued.

“That is precisely what the transportation mask order does: masks isolate the disease itself by trapping viral particles exhaled by infected travelers and preventing non-infected travelers from inhaling viral particles,” they wrote.

In particular, the government cited how the law gives health officials the authority to enforce regulations linked to “sanitation” in efforts to prevent disease spread.

“The district court compounded its errors by issuing nationwide relief. Another judge in the same district recently upheld the CDC’s transportation mask order,” government lawyers said, referring to a decision in Wall v. CDC.

Answer

In its answer, appellees said Mizelle properly rejected the government’s rationale, which it said was contrived after the order itself was implemented because the order itself does not mention sanitation.

“First, unlike the measures enumerated in the second sentence of § 361(a) the Mask Order does nothing to directly target COVID-19 by ‘identifying, isolating, and destroying the disease itself,’” they said. “It applies universally to every healthy individual who enters a transportation hub or sets foot on an airplane, bus, subway, or taxi.”

The words that surround “sanitation” make clear that sanitation “refers to active measures towards property,” the Health Freedom Defense Fund said, accusing the CDC of attempting to divorce sanitation from its legal context, “giving the word a meaning so broad that it would effectively nullify the entire second sentence of § 361(a).”

The appeals court has yet to decide whether to order an oral briefing. The government asked for one; the health group said it was not taking a position on the matter.

“The Biden Administration is trying to paper over an illegal, sweeping mandate on Americans that is full of massive legal and scientific holes,” Leslie Manookian, the group’s president, said in a statement. “That a federal agency should be able to just usurp the power of Congress, and violate fundamental individual rights is not only at odds with the law—it defies basic common sense.”