For some reason, I foolishly thought that all of the nonsense over a federal mask mandate for air travel was over. Clearly, I was incorrect. Back on April 18, a U.S. District Judge ruled that the CDC had overstepped its authority in issuing the mandate for air travel. Almost immediately, the Biden administration declared that they would stop enforcing it, though the CDC said that it still “recommends” that people wear masks while traveling. The mandate was scheduled to end anyway on May 3rd, almost a month ago, so the entire question appeared to be moot. But the deadline to file an appeal to the ruling was yesterday, and that’s what the Justice Department has done. (Reuters)
The U.S. Justice Department on Tuesday asked a federal appeals court to overturn a U.S. District Court judge’s April order that declared the government mandate requiring masks on airplanes, buses and in transit hubs unlawful.
Hours after the federal judge in Florida declared the mandate unlawful, the Biden administration said it would no longer enforce it.
The Justice Department told the appeals court that the Centers for Disease Control and Prevention (CDC) order issued in January 2021 was “within” the agency’s legal authority.
I’m hoping that this isn’t some sort of indication that the Biden administration is thinking of reinstating the mandate at this point. There has been no suggestion from the White House that they plan to do so. It would another incredible failure to read the room if that were the case.
More likely is the probability that the Justice Department is doing this as a procedural maneuver. If they can get that ruling overturned, it doesn’t mean that the mandate automatically comes back because the last one has already expired. It also doesn’t mean that Biden would have the CDC issue another mandate immediately.
What it would do is establish that the White House and the CDC have the authority to issue such a mandate for domestic air travel. That way they could maintain that as a trick up their sleeve when the next pandemic arrives. (Monkeypox, anyone?) Based on previous rulings and depending on how far up the chain this goes, I unfortunately won’t be terribly surprised if the ruling is overturned. The courts have continued to allow broad exercises in executive power during a declared state of emergency. And governments at every level have been taking full advantage of that fact. You can rest assured that they will do so again in the future as well. And not just for pandemics. I’m still waiting for a declaration of a “climate emergency” or a “gun violence emergency” so they can cut Congress out of the loop and do whatever they like.
The theory that this is primarily a procedural maneuver seems to be suggested by the Justice Department’s explanation for the appeal. Let’s see how well this holds up:
“None of the district court’s quarrels with the CDC order comes close to showing that the CDC has acted outside the ‘zone of reasonableness,'” the Justice Department wrote, adding that the CDC findings in early 2021 provided “ample support for the agency’s determination that there was good cause to make the order effective without delay.”
In the case of this specific mandate, the FAA has chimed in with one bit of data that should give the Biden administration pause before attempting to reinstate the mask mandate. They just announced that incidents of “unruly air passengers” dropped to the lowest levels they have seen since the start of the pandemic almost immediately after the mandate was lifted. Is anyone surprised? I’m just worried that Joe Biden’s team actually might be surprised.
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