- The Washington Times - Monday, April 18, 2022

A federal judge in Florida nixed the federal mask mandate for air travel and other public transportation on Monday, leading a Biden administration official to announce that the mandate will not be enforced while it considers its options.

Judge Kathryn Kimball Mizelle, a Trump appointee, said the Centers for Disease Control and Prevention overstepped its authority and did not justify the mask requirement for public transportation systems. She said the agency ran afoul of federal law because it did not adhere to the Administrative Procedure Act when issuing the mask order.

“Because ‘our system does not permit agencies to act unlawfully even in pursuit of desirable ends,’ the court declares unlawful and vacates the mask mandate,” Judge Mizelle wrote in the 59-page order.

An administration official said the mask mandate will not be enforced while agencies weigh their next steps.

The court decision “means CDC’s public transportation masking order is not in effect at this time,” the official said. “Therefore, [the Transportation Security Administration] will not enforce its Security Directives and Emergency Amendment requiring mask use on public transportation and transportation hubs at this time.”

The White House criticized the ruling.

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“This is obviously a disappointing decision. The CDC continues recommending wearing a mask in public transit,” White House press secretary Jen Psaki said.

A spokesperson for the Justice Department said officials are reviewing the decision.

Meanwhile, congressional Republicans celebrated the decision. Republicans on the House Judiciary Committee tweeted out the ruling with the word “Freedom.”

Sen. Steve Daines, Montana Republican, said it was a significant victory for common sense.

“It’s past time we let families get back to normal and put an end to all of Biden’s unscientific, unconstitutional mandates for good,” he said.

Fully masked airline employees working the ticket desks at Ronald Reagan Washington National Airport in Northern Virginia told The Washington Times on Monday night that they were shocked by the court decision earlier and were not sure about the next steps.

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One airline employee said she had received an e-mail from her company about the court’s decision on the mandate just 30 minutes before a reporter asked her about it.

“I just read it. Nobody has said anything,” she said, agreeing she “totally” felt blindsided by the news.

Another airline employee pumped his fists in the air when told about the court decision.

But a Transportation Security Administration employee told The Times that TSA personnel were still getting “orders to wear masks.”

“As you can hear, in the airport, they still want people wearing them,” he said.

The public-address system at Reagan National on Monday night still was advising people that “face coverings were required at all times.”

However, five of the biggest U.S. airlines — Southwest, Alaska, Delta, United and American — all had announced within hours that masks were now optional on their flights.

The lawsuit was brought by the Health Freedom Defense Fund and two travelers with anxiety who protested wearing the masks.

The federal government last week announced an extension of the mask mandate for transportation, which included planes, trains, buses and subways, because of an uptick in COVID-19 cases. The mandate was issued on Feb. 3, 2021, roughly two weeks after President Biden took office. 

The mandate provided exceptions for children younger than 2 and for people with certain disabilities.

It was set to expire on April 18 but was extended to May 3 until the judge handed down the order on Monday.

Lawrence O. Gostin, a global health law professor at Georgetown University, said the judge is “clearly wrong” but her ruling will be a big setback to Mr. Biden and the CDC if it is not swiftly overturned on appeal.

“CDC clearly has the power to prevent the interstate transmission of COVID on airplanes by requiring masking,” he said. “This ruling could cause chaos at airports across the United States. This is also a major blow to the president because it questions his administration’s authority to act to protect the public health.”

The U.S. Circuit Court of Appeals for the District of Columbia has a group of pending cases challenging the mask mandate.

In addition, a federal court in Texas is handling a lawsuit filed by the state, a Republican congresswoman and an advocacy group against the CDC over the mask requirement.

Judge Reed Charles O’Connor, a Bush appointee, is handling that legal battle.

Besides travelers, pilots and flight attendants have sued to end the mandate. They say it is difficult to wear masks for hours on end and to police passengers who refuse to obey the rule.

Although some passengers might feel safer because of the mandate, major airlines have lobbied Mr. Biden to let the rule expire. They have cited the burden of enforcement and the fact that the CDC does not recommend universal mask-wearing in much of the country.

The administration decided last week to prolong the mandate so it would have time to evaluate the fast-moving BA.2 variant of the coronavirus, which accounts for 85% of COVID-19 cases in the U.S., and whether the variant will cause major problems.

Daily COVID-19 case counts remain close to pandemic lows across the country but are slowly increasing and have reached 38,000 per day, an increase of about 40% from two weeks ago.

Hospitalizations have continued to decline, and the daily average of COVID-19 patients sits below 15,000 as scientists point to a possible decoupling of cases and bad outcomes because of vaccines, boosters and available treatments.

However, the decline is starting to level off as the BA.2 variant becomes dominant.

Philadelphia reimposed its indoor mask mandate on Monday, saying it needed to stay ahead of the new variant.

The White House is sticking to business as usual. It held an outdoor Easter egg roll on Monday and scheduled indoor events in the East Room in recent weeks.

Mr. Biden is trying to pivot to an era in which COVID-19 is treated as a disease in the background of society, but his decision to prolong the transportation mask mandate is complicating that position.

Republicans and centrist Democrats say it is odd that the transportation mandate has an uncertain endpoint, even as Mr. Biden has opted to lift Title 42, the pandemic order that allowed the U.S. to swiftly turn away migrants at the border, on May 23.

They say the twin decisions send an inconsistent message about the trajectory of the pandemic.

Arthur Caplan, director of the division of medical ethics at the New York University Grossman School of Medicine, said the Biden administration will have to decide whether it is worth fighting to restore the mask mandate given the widespread push for normalcy.

“It’s just not worth it to get into the war unless you had a complete explosion in COVID rates,” he said. “I think the drive back to normal is huge. The political cost of trying to fight that wish is very high. Whether the virus agrees or not, that seems to be what the American people want to do.”

Because of that, he said, people who are immunocompromised will be left to fend for themselves.

“They’re going to be stuck restricting their behavior, wearing masks,” he said, “because their fellow citizens just aren’t willing to sacrifice for them.”

For more information, visit The Washington Times COVID-19 resource page.

• Tom Howell Jr. can be reached at thowell@washingtontimes.com.

• Kerry Picket can be reached at kpicket@washingtontimes.com.

• Alex Swoyer can be reached at aswoyer@washingtontimes.com.

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