Justice Department appeals to restore transport mask mandate

WASHINGTON — The Biden administration on Wednesday appealed a federal court ruling overturning the mask requirement for passengers on planes, trains, buses and other public transportation after the Centers for Disease Control and Prevention said concluded that the warrant was “necessary” to protect the public from the spread of the coronavirus.

The decision came two days after a federal judge in Florida overturned the mask mandate and sparked a stampede among airlines, some transit systems and even Uber and Lyft to drop mask requirements. Some pilots announced the abrupt change mid-flight, sparking celebration – but also anxiety – among virus-weary passengers.

While the CDC wants to keep the mandate intact, it is also pressing the call to preserve its public health powers. But this is potentially risky; if the judgment annulling the mandate is upheld, this could permanently weaken the agency’s authority.

Even if the Biden administration wins the lawsuit, there will be backlash among Americans who felt liberated by the lifting of the mask requirement, which also applied to transportation hubs like airports, seaports and stations.

The legal measures do not change the status of the mask mandate, which can only be reinstated if the administration obtains a stay of the federal district court order, and there were few immediate signs that airlines would reintroduce the their. Legal experts said it was likely the administration would seek a stay, and if so, the court could decide to grant it within days.

The Justice Department’s call also comes as cases, but not hospitalizations and deaths, are rising in the majority of states, as the BA.2 subvariant threatens to trigger another killing wave.

The term was in place shortly after President Biden took office in January 2021 and was set to expire on April 18. But despite pressure from airlines, the hotel industry and Republican lawmakers to lift the rule, the CDC extended it through May 3. give public health experts more time to assess whether to pursue it.

The United States Court of Appeals for the 11th Circuit, which will hear the case, is conservatively leaning, and the case could end up in the Supreme Court, which is also conservatively dominated.

“This creates a clash between public health and a conservative justice system, and what depends on it is the future ability of our nation’s public health agencies to protect the American public,” said expert Lawrence O. Gostin. in public health law at Georgetown. University. “The risk is that you get a conservative ruling from the 11th Circuit that will so diminish the powers of the CDC to fight Covid and future pandemics that it will make all Americans less safe and secure.”

Jen Psaki, the White House press secretary, said in an interview with CNN+’s Chris Wallace on Wednesday that the appeal was important not only to preserve the mask requirement, but also “to ensure that authority and the CDC’s ability to implement warrants in the future remain intact.”

But Tori Emerson Barnes, an official with the US Travel Association, a trade group, said the warrant had lost its usefulness.

“With low hospitalization rates and multiple effective health tools now widely available, from boosters to therapies to high-quality ventilation on planes, mandatory mask-wearing on public transport is simply out of step. with the current public health landscape,” she said in a statement. .

In the 59-page ruling she issued on Monday, Judge Kathryn Kimball Mizelle, who was appointed by President Donald J. Trump, overturned the transportation warrant on several grounds, including that the agency exceeded her authority. legal under the Public Health Services Act 1944.

On Tuesday, after a day of deliberations at the White House, the Justice Department announced it intended to appeal the ruling — but only if the CDC decides the warrant is still needed. On Wednesday evening, the CDC clarified its position.

“The CDC believes this is a lawful order, well within the CDC’s legal authority to protect public health,” the agency said in a statement, adding that it “continues to recommend people wear masks on all domestic public transport.”

The statement also said, “When people wear a properly fitted mask or respirator over their nose and mouth while traveling indoors or on public transport, they are protecting themselves and those around them, including those who are immunocompromised or not yet eligible for the vaccine, and help make travel and public transport safer for all.

In mid-April, after the CDC announced it was extending the mandate until May 3, Dr. Ashish K. Jha, the White House’s new Covid response coordinator, said in an interview that the additional time would allow the CDC to assess whether BA .2, a subvariant of the coronavirus, would become a “ripple or wave” in the United States. Experts said Wednesday that the issue remains unresolved.

The CDC actually has very limited regulatory power; overall, the power to impose public health restrictions rests with state and local governments. But legal experts agree that interstate transportation is a notable exception. In interviews, several said Judge Mizelle misinterpreted the law.

When it passed the Public Health Services Act of 1944, Congress authorized the CDC to make and enforce regulations that it believes “are necessary to prevent the introduction, transmission, or spread of communicable diseases”.

The law also suggests certain actions the CDC could take to prevent the spread of disease, including sanitation, disinfection, and extermination of pests.

Judge Mizelle interpreted those suggestions as the CDC’s only options — a narrow interpretation that “fundamentally misunderstands the scope of authority granted to the CDC,” said James Hodge, director of the Arizona Center for Public Health Law and Policy. State University. She also erred in equating the mask mandate with a quarantine, he said.

The judge also faulted the CDC for not soliciting public comment on the mask order — a finding that Professor Gostin said “defies common sense.” Although administrative law requires public comment for most federal actions, it also allows for “good cause” exceptions.

But while Mr. Gostin said the CDC would have an “extraordinarily good case” on appeal, he said an alternative would have been for the agency to let the current term expire and then seek to reinstate it on a date. later if cases increased – and defend the new order in court at that time if necessary.

Some public health experts have argued against extending the transport mask’s mandate, so as not to trigger an appeal of Judge Mizelle’s decision and potentially lead to a higher court permanently limiting the powers of the CDC.

“From a pure public health perspective, I would say give it up, it’s not worth fighting for,” said Dr. Carlos del Rio, an infectious disease specialist at Emory University. Atlanta.

At the same time, it could be difficult for the White House and CDC Director Dr. Rochelle P. Walensky to rationalize the decision to appeal the judge’s decision, given that they have increasingly considered wearing a mask as a matter of personal choice. On Tuesday, Mr Biden himself was evasive when asked if people should wear masks on planes, saying the decision to do so was theirs.”

Just two months ago, the CDC changed its guidelines in a way that made it much less likely that a county would be considered high risk. Only in high-risk areas does the agency now recommend that everyone wear an indoor mask. He says those with immune deficiencies or who are otherwise at high risk for serious illness should speak to their healthcare providers about whether they should wear a mask in moderate-risk areas.

Under the new regulations, the CDC said counties should decide the level of risk for their residents based on the number of new Covid-related hospital admissions over the past week, the percentage of hospital beds. hospitals occupied by Covid-19 patients and the rate of new cases over the past week.

“We want to give people a break from things like mask-wearing when those measures are better,” Dr Walensky said at the time. “And then having the ability to reach them again if things get worse.”

Public health experts say it’s up to Dr. Walensky to preserve his agency’s ability to encourage, if not mandate, mask-wearing in the face of any future deadly wave of the virus.

“The CDC shouldn’t let the drama of this court opinion change what it would have done,” said Dr. Celine Gounder, infectious disease specialist and public health editor at Kaiser Health News. “The important thing is that she will probably face another spike in hospitalizations in the future, another dangerous variant, and she absolutely needs to keep this tool in her pocket – the masking tool.”

Sharon LaFraniere and Niraj Chokshi contributed report.

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