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The Huge Risk Underlying the Biden Administration’s Legal Fight to Reinstate the CDC’s Mask Mandate


Fighting to preserve the standing of the Centers for Disease Control and Prevention, the Biden administration is going to court to bring back the federal mask mandate on airplanes and public transportation that was struck down by a conservative judge last week. But the move could risk leaving the CDC in an even worse position, should Judge Kathryn Kimball Mizelle’s decision be upheld: If the administration fails, the CDC could have less authority to impose similar mask requirements or other public health policies in the future.

“This sets up a clash between public health and a conservative judiciary, and what’s riding on it is the future ability of our nation’s public health agencies to protect the American public,” as Lawrence O. Gostin, a public health law expert at Georgetown University, told the New York Times on Wednesday. “The risk is that you will get a conservative 11th Circuit ruling that will so curtail CDC’s powers to fight COVID and future pandemics that it will make all Americans less safe and secure.”

Mizelle, who received a rare “Not Qualified” rating by the American Bar Association when she was appointed by Donald Trump to the United States District Court for the Middle District of Florida in November 2020, vacated the Biden administration’s masking requirements for public transportation on Monday, writing that CDC had “exceeded” its authority in imposing the rules. That set off a whirlwind: The Biden administration said it would not be enforcing the regulation following the ruling, and major airlines and other transportation companies quickly switched to mask-optional policies, leading some travelers to rip off their face-coverings in mid-flight.

The administration didn’t initially say whether it would challenge the ruling, and it wasn’t necessarily expected to do so: As Politico noted earlier this week, the White House has been relaxing its COVID guidance in recent months, and hasn’t appeared to have much appetite for a messy fight over pandemic politics ahead of this fall’s high-stakes midterms. President Joe Biden didn’t exactly seem eager to wade into it earlier Wednesday, when he told reporters it was now “up to them” — individual American travelers — whether they should wear masks on public transportation or not. His administration left the decision to appeal up to the CDC, and the agency — which has been in its own fight to restore its battered credibility — recommended the Justice Department proceed. “It is CDC’s continuing assessment that at this time an order requiring masking in the indoor transportation corridor remains necessary for the public health,” the agency said in a statement Wednesday. “CDC believes this is a lawful order, well within CDC’s legal authority to protect public health.”

It very well may be — the agency has an “extraordinarily good case” against Mizelle’s ruling, as Gostin told the Times — but it remains to be seen if that’s the view of the U.S. Court of Appeals for the 11th Circuit. That court tilts conservative, as does the Supreme Court, which could eventually hear the case; that bench has a 6-3 conservative majority, with three Trump appointees, that has already struck down Biden’s employer vaccine mandate and other administration COVID policies. Should they side with Mizelle down the road, it would establish her ruling as precedent and narrow CDC’s ability to put forth public health regulations going forward. The DOJ warned the administration as much, according to CNN. But on the CDC’s recommendation, the administration is nevertheless pressing forward with the challenge. “We know there’s going to be ups and downs in this pandemic. We’re all ready for it to be over,” White House Press Secretary Jen Psaki told CNN+. “We want to ensure that our public health experts are able to take steps, if needed, in the future.”

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