The Biden administration will appeal a federal judge’s decision that struck down the mask mandate on public transportation, officials announced Wednesday.
The Justice Department on Tuesday had said it would proceed with an appeal if the CDC determined the masking order was still needed.
“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 CDC said in a statement Wednesday evening. “CDC believes this is a lawful order, well within CDC’s legal authority to protect public health.”
The White House spent two days deferring on questions about its legal strategy as agency officials fretted about the political and policy implications of a court battle to support the mask mandate — particularly in a midterm election year when many Americans say they want to move past the pandemic.
As that debate ensued, officials publicly told Americans they were on their own when it comes to masking on transit. Passengers’ decision to wear a mask on public transportation “is up to them,” President Biden said Tuesday.
Public health officials have worried that the ruling poses a risk to the CDC’s authority to take steps in the future to curb the spread of deadly diseases and protect the public health, and outside experts had exhorted the Biden administration to act.
“If the courts handcuff the CDC in this most classic exercise of public health powers, it seems to me that CDC will not be able to act nimbly and decisively when the next health crisis hits. And it will hit,” said Lawrence O. Gostin, a Georgetown University professor of global health law who advises the White House and urged the administration to appeal.
If the decision is allowed to stand, Gostin said, the CDC “will always be looking over its shoulder, always gun-shy about exercising its powers.”
But the appeal could tee up a battle at the Supreme Court, which has already dealt several blows to the administration’s coronavirus policies and could issue a new ruling that further constrained the CDC’s attempts to fight future virus surges.
While the high court has largely allowed state-issued coronavirus restrictions and requirements to stand, its conservative majority has been skeptical of the power of federal agencies.
The Biden administration has had limited success defending its efforts to slow the spread of the deadly virus. In January, the Supreme Court blocked the White House’s signature vaccination-or-testing requirement for the nation’s largest employers. But the justices allowed a narrower mandate requiring vaccinations for health-care workers at facilities that receive certain federal funding.
Last summer the high court ended the CDC’s pandemic-related eviction moratorium in response to a challenge from a group of landlords and real estate groups.
Government officials face an uncertain reception at the U.S. Court of Appeals for the 11th Circuit, which reviews cases from Florida, Georgia and Alabama. A majority of the judges were appointed by President Donald Trump, as was Mizelle, a district court judge. The Biden administration could ask the appeals court to immediately put Mizelle’s ruling on hold and reinstate the mandate, which, if successful, would create a new wave of confusion for travelers using public transportation.
Health experts had lamented Mizelle’s court ruling, saying it confused Americans about the need for masking and could increase the risk of virus spread. That was vividly illustrated Monday night as some passengers and flight crews removed their masks, often jubilantly, as airlines swiftly dropped nearly two-year-old masking requirements after the judge’s decision.
“It would have been good to have some notice. Some time to think about it instead of midflight,” said Stephen Matta, a software developer who was flying back to Washington, D.C., from Puerto Rico, when the pilot on his JetBlue flight announced that passengers could remove their masks.
“Everyone [was] kind of looking at each other and not sure what to do,” Matta said. He and his family elected to keep their masks on.
Linsey Marr, a Virginia Tech professor who has studied the transmission of the virus, said she was particularly worried about the possibility of virus transmission aboard buses.
“Those can be even more packed — standing room only,” she said. “And in almost all cases, they do not have as good ventilation and filtration as airplanes.”
The Biden administration had repeatedly extended the mandate, most recently through May 3, saying CDC experts needed time to investigate the implications of the fast-moving BA.2 variant’s spread.
But Monday’s ruling instead sparked an array of transit masking policies, the latest illustration of the nation’s largely fragmented response to the pandemic.
Some cities and transit authorities, such as New York’s Metropolitan Transportation Authority, have said they will continue to require masks in hopes of curbing virus spread — even as airlines that fly to those cities swiftly dropped their masking rules.
The patchwork policies that have defined the pandemic have led many Americans to say they’re confused by coronavirus advice that seems to conflict and, polling shows, has caused them to lose some confidence in public health agencies as a result.
A White House event in May 2021 celebrating that masks were no longer needed indoors was followed by the CDC’s exhortation in July 2021 to put them back on in many places across the country. A government debate last fall over whether booster shots were necessary clouded that policy’s rollout and may have dampened uptake of the shots in the United States.
Only half of Americans in January believed that the CDC and other public health agencies were doing a good or excellent job responding to the pandemic, down from 60 percent in August 2021 and 79 percent at the start of the pandemic, according to Pew Research polling.
Polls have also found that Americans are roughly split on the need for face coverings on public transportation. For some people, tired of the pandemic, the mask mandate had become a symbolic imposition, with protesters rallying in Washington, D.C., and elsewhere to call for the rule’s end. Many others say face coverings are a necessary protection as the virus continues to circulate, a position backed by public health experts such as Julie Morita, executive vice president of the Robert Wood Johnson Foundation and a former Chicago health commissioner.
“If the CDC’s power for implementing this kind of a prevention measure isn’t challenged, it becomes a precedent and I worry that this could be applied in the future,” Morita said, adding that state and local public health agencies depended on the CDC’s guidance and authority to make their own policies.
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