The flight attendant mask mandate lawsuit has arrived

(Anthony Souffle/Star Tribune via AP)

Joe Biden and the CDC continue to drag their feet on lifting the mask mandate for public travel, including on airlines. In fact, when congressional Republicans suggested lifting it through legislative means, the President immediately threatened to veto the measure. So the politicians have all been having their say on this question, but the people who haven’t been given much of a voice in the debate are the actual bus drivers, subway operators, and flight attendants who are most directly impacted by these rules. In the case of the airlines, that situation may finally be changing. A group of airline attendants from six states has brought a lawsuit against the CDC, demanding that the mandate be lifted because of the damaging impacts it causes to their health and personal security. (Washington Times)

Nine flight attendants from six states said Monday they are suing the Centers for Disease Control and Prevention over the federal mask mandate on public transportation, arguing the COVID-19 rule obstructs their normal breathing over many hours and threatens aviation security because passengers refuse to comply.

They want a judge to vacate the rule, which was recently extended to April 18, and prevent the CDC and the Department of Health and Human Services from issuing such a mandate again. The attendants filed suit in the U.S. District Court for the District of Colorado because one plaintiff, Victoria Vasenden of Southwest Airlines, is based at Denver International Airport.

“We are in planes and airports up to 18 hours a day with zero chance of fresh air,” Ms. Vasenden said. “That’s assault on the brain, organs, and tissues of the human body. Yet we are expected to ensure all aspects of the flight remain safe when masks clearly diminish our capacities.”

The more aggressive portion of the lawsuit is seen not in the demand that the current mask mandate be lifted, but in the request for a judge to bar the CDC and DHS from instituting similar mandates in the future. I’m not sure how well that portion will go over simply because the courts have traditionally allowed considerable latitude for the executive branch to exercise extraordinary measures during a declared state of emergency. But it’s certainly worth a try.

Having the lawsuit specifically call out the dangers of physical altercations with passengers is important. This is yet another of the seemingly endless list of examples of executive mandates suddenly thrusting ordinary citizens who are just trying to do their jobs into the role of some sort of law enforcement official. Nobody taking a job as a flight attendant or a bartender signed up to be the mask police or the immunity passport hall monitor. And they definitely didn’t go into those lines of work with an expectation that customers would start punching them in the face if they didn’t want to obey the orders that they were given.

There is one catch to this effort, of course. The current mask mandate for travelers is set to expire on April 18th unless the CDC extends it yet again. It’s unlikely (though not impossible) that the plaintiffs could even get an initial ruling in that amount of time. And even if they did and it went in their favor, the government would immediately appeal, seeking to have the ruling put on hold. In the meantime, the CDC could simply allow the mandate to expire and then file a motion to have the case dismissed because the original threat of harm to the plaintiffs had been removed. The only way for the case to move forward at that point would be a hypothetical one seeking a ban on future mandates, and I’m not sure that they could show standing to bring that type of suit.

Most of these decisions by the Biden administration and various blue-state governors and mayors have been exposed as being primarily political in nature rather than being driven by “the science.” Given the growing public discontent over COVID mandates and the shrinking number of days remaining until the midterms, I will predict that Biden will simply allow the mandate to expire on the 18th (if not sooner) and just try to put this lawsuit in his rearview mirror.