Biden's not going to appeal the ruling ending the transportation mask mandate, is he?

Biden's not going to appeal the ruling ending the transportation mask mandate, is he?
AP Photo/Andrew Harnik

I’m about 80/20 in thinking that he won’t. Quite simply, this is not an administration that can afford to make itself even an ounce less popular than it already is.

And trying to get the mandate reinstated would certainly make it less popular. “Many passengers greeted the news with applause and cheers, as seen in videos on social media,” the Times reported of mid-flight announcements that the mandate had been struck down. “One took a celebratory selfie, with most fellow passengers in wide, maskless grins. A pilot told those aboard his flight: ‘Congratulations.'”

The fact that the airlines declined to wait until planes already in the air had landed before changing their policies is evidence of how frantic they are to lock in this policy change. If they had waited even a few hours before announcing that masks were no longer required, they would have given the White House an opportunity to announce that it was seeking a stay of the district court’s decision lifting the mandate. By announcing a change immediately, they created a popular new maskless status quo and set of expectations for travelers that Biden will upend if he seeks a stay. That makes the politics of appealing trickier.

Changing the policy quickly also created competitive pressure for the whole industry to follow suit. No one wanted to become known overnight as the airline that’s dragging its feet on not requiring masks. Other transportation companies are also moving quickly for the same reason, I’d imagine:

Jazz noted earlier that TSA, interestingly, was also quick to announce it wouldn’t enforce the mandate. Would the administration have allowed a federal agency to do that if it was planning to appeal?

Biden’s been handed a political gift here by a Trump-appointed federal judge — sort of. All he needs to do is take the L and then (maybe) reap a political dividend as Americans exult in their new maskless “normal.” He promised a return to normalcy in 2020, didn’t he? Well, now he’s got it:

The mandate was only supposed to remain in effect until May 3 anyway, at which point the CDC would revisit it. They were almost certainly going to ditch it at some point this spring or summer if hospitalizations for COVID remain low. Why fight in court over a policy that’s in effect for only two more weeks?

But there’s a reason there’s a “20” part to my 80/20 assessment. A lot of risk-averse pro-restriction Democrats are unhappy with the ruling, particularly the fact that it came from a very young Trump appointee (who was confirmed after the 2020 election, in fact). Fox has a fun round-up of assorted liberals and/or public health experts groaning about the lifting of the mandate. And as we’ve seen in the battle over Title 42, the White House is foolishly willing to embrace a policy that’s destined to be wildly unpopular with the great mass of normie voters in the electorate in order to make the left-most part of its own coalition happy. Does Biden have the stones not to appeal amid complaints like this?

The president promised a return to normalcy but he also promised that he’d always follow the science, and “the science” according to the White House is whatever a consensus of public health bureaucrats says it is. If the expert class, starting with the CDC, says the mask mandate is still useful on public transportation, how can President Science overrule them? It’d be a betrayal of his campaign promise to his base. More from Politico:

If the administration doesn’t appeal:

As a matter of credibility, it risks hurting the institutional authority of the CDC, which they said would be central to the decision-making process. It also raises the question of why the administration just re-upped the mandate if this was really the policy it wanted.

If Biden believes the CDC should have authority to set policy during a pandemic then he should appeal on principle, to try to vindicate that authority legally.

Or are there strategic reasons not to do that right now? Former Biden COVID advisor Andy Slavitt made an interesting point:

If Biden appeals the district court ruling, at a moment when hospitalizations are low and the argument for mandatory masking is weak, he’s at greater risk of the 11th Circuit and SCOTUS upholding the ruling. That would create a precedent denying the CDC the power to set mandates in the future. He may be better off declining to appeal, hoping that the new sense of maskless normalcy boosts his approval a bit, and then having this fight in the fall or winter when cases are surging again. The CDC could attempt to reinstate the mandate at that point, prompting a legal battle. And SCOTUS may be less eager to strike down COVID restrictions at a moment of higher risk than it would be now.

The one concession I’ll make to the forever-mandate side here is that it was sketchy to change the policy *mid-flight.* As I said above, I understand why the airlines did it. But if you’re someone with a health issue who felt comfortable flying because you were assured everyone aboard would be masked, it must have been jarring to have that assurance yanked while you were already in the air. “It’s not that the mask mandate has changed that upset me, it’s that we boarded the plane under one set of rules, and made a decision as a family and as a work group,” said one passenger to the NYT of the de facto false advertising she and her colleagues were subjected to. She’d better get used to the new status quo, though. I doubt Biden’s going to try to change it.

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John Sexton 10:00 PM on June 02, 2023