Trump Judge Tosses Airline Mask Mandate

The Biden administration's mandate has been lifted immediately.

WSJ (“Judge Throws Out Federal Mask Mandate for Public Transportation“):

A federal judge in Florida declared the Biden administration’s Covid-19 mask mandate for public transportation unlawful, throwing out its requirement that travelers in the U.S. wear masks on airplanes, trains, taxis, buses and other forms of mass transit.

U.S. District Judge Kathryn Kimball Mizelle in Tampa ruled Monday that the mandate exceeded the authority granted to the Centers for Disease Control and Prevention under federal public-health law and was issued in violation of rule-making procedures.

Judge Mizelle, an appointee of former President Donald Trump, said Congress had never clearly given the CDC the power to issue population-wide preventive public-health measures such as the mask mandate.

Because the CDC acted beyond its authority, “the court must hold unlawful and set aside the mask mandate as an agency action that is not in accordance with law,” she wrote in an opinion that effectively applied nationwide.

A Biden administration official said the mandate is no longer in effect while the government considers its next steps, and the Transportation Security Administration said it would stop enforcing it. Airlines late Monday began saying they would lift masking requirements, policy changes that in some cases were implemented midflight.

“This is obviously a disappointing decision,” White House press secretary Jen Psaki told reporters Monday. She said the CDC continues to recommend wearing a mask when using public transit.

The Department of Homeland Security and the CDC are reviewing the ruling, and the Justice Department will make a decision on any further litigation, Ms. Psaki said.

WaPo (“TSA stops mask enforcement after federal judge voids mandate“) adds:

In her decision Monday, Mizelle, who was appointed by President Donald Trump and clerked for Supreme Court Justice Clarence Thomas, said the CDC had relied on a 1944 law, the Public Health Service Act, to impose the mandate. But the government’s argument that it put the mask requirement in place for the purpose of “sanitation” falls short, Mizelle argued.

“Wearing a mask cleans nothing. At most, it traps virus droplets. But it neither ‘sanitizes’ the person wearing the mask nor ‘sanitizes’ the conveyance,” Mizelle wrote.

The case was brought on behalf of a legal group known as Health Freedom Defense Fund and airline passengers, including Ana Daza, who said she has anxiety aggravated by wearing a mask.

Mizelle found for the plaintiffs on three key issues, ruling that the CDC had exceeded its legal authority, that it had improperly avoided notice and comment procedures, and that its mandate was “arbitrary and capricious.” In her ruling, Mizelle argued that the mask mandate wrongly curtailed passengers’ freedom of movement.

“Anyone who refuses to comply with the condition of mask wearing is — in a sense — detained or partially quarantined by exclusion” from their means of transportation, she wrote.

Industry trade group Airlines for America said U.S. airlines “have been strong advocates for eliminating pandemic-era policies and are encouraged by the lifting of the federal transportation mask mandate.” The group said high U.S. immunity levels and widespread vaccine accessibility, plus hospital grade cabin-air filtration, should give travelers confidence.

The CDC said Monday it doesn’t comment on pending litigation.

In a legal filing last month defending the mandate, Justice Department lawyers said the plaintiffs in this case had relied on an “unduly narrow and grammatically incorrect” interpretation of the public health law. They noted that Congress had authorized health officials to make and enforce regulations “necessary to prevent the introduction, transmission, or spread of communicable diseases” from outside the country, or within it, using “sanitation” and “other measures.” They also noted that the Supreme Court, in a case last year, said those measures relate directly to preventing the interstate spread of disease “by identifying, isolating, and destroying the disease itself.”

Masking requirements have generally been made after considering emerging epidemiology on restricting the spread of the virus, and not on an “arbitrary or capricious” basis, Jeanne Marrazzo, director of the Division of Infectious Diseases at the University of Alabama at Birmingham, said in an email while quoting the words Mizelle used in her ruling.

When I saw the report last yesterday afternoon, I immediately Googled to see whether Mizelle was a Trump appointee and among the first things I came upon was a tweet from former NYT reporter Stephen Greenhouse noting, “The judge who voided the national airline mask mandate is Kathryn Kimball Mizelle—35 years old, member of the Federalist Society & former law clerk for Clarence Thomas. Trump nominated her in 2020 & the Senate confirmed her on Nov 18, 2020—after Trump lost.” Indeed, she was 33 at the time of her confirmation and was rated “not qualified” by the American Bar Association for “the short time she has actually practiced law and her lack of meaningful trial experience.”

Obviously, that doesn’t invalidate the ruling or even necessarily mean she got it wrong. But it certainly raises a red flag—especially when paired with the tendentious language about “detention” and the claim that masks don’t sanitize anything.

Then again, the fact that the administration immediately dropped the masking requirement rather than seeking an emergency stay from a higher court would seem an indication that they think the ruling will stand. While Mizelle’s parsing of the words of a 1944 statute is certainly debatable, she’s almost certainly right that the requirements of the Administrative Procedures Act—which was used to strike down countless Trump executive orders—were not met. And while emergency authority is sometimes assumed, there has been plenty of time to implement non-emergency procedures at this point. [UPDATE: Having scanned the decision itself, I find it much more reasonable and persuasive than the excerpts in the various media reports suggest. In particular, the statute in question is quite narrow and has been “rarely invoked” and never previously in such a fashion. I think it’s quite likely that this ruling survives appellate scrutiny.]

Regardless, both the airlines and their customers seem happy about it. Back to WSJ:

Airlines cautioned patience with those who still want to continue wearing masks, nodding to strong views on both sides of the issue.

“While we are glad this means many of us get to see your smiling faces, we understand some might have mixed feelings. Please remember to be kind to one another and that wearing a mask while traveling is still an option,” Alaska wrote in a blog post.

Some passengers flying Monday evening said flight attendants announced the new policies midflight, allowing for people to go unmasked for the remainder of their trips.

Mary Stephens, flying from Anchorage to catch a connecting flight in Seattle, said passengers cheered when an Alaska Airlines flight attendant said that they could remove their masks.

“I’d say 99% of people took their masks off,” Ms. Stephens said, though she said she and her daughter kept theirs on, and most people she saw in the Seattle airport were still masked.

Just before Paul Bauer’s Southwest Airlines flight to Sacramento took off from Phoenix, the pilot said that he had received word from the airline that masks were optional. Some passengers clapped, and a flight attendant walked up and down the aisle with a garbage bag to collect masks, Mr. Bauer said.

“When doing the standard emergency announcements, the flight attendant said you have to wear a mask but someday soon that will change,” Mr. Bauer said in a written message sent while still aboard his flight. “And then minutes later, it did.”

“A surprisingly high number are still wearing masks, including myself,” he said. “Why not?”

FILED UNDER: Law and the Courts, , , , , , , , , , , , , , , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Jon says:

    My understanding is that the mandate was going to expire in a couple weeks anyway, so the administration probably doesn’t think it is worth it to fight over something that was already going away.

    Oh, and she also thinks paper money is unconstitutional.

    3
  2. Jen says:

    When I traveled in Nov. 2021, I overheard a flight attendant saying that he’d be relieved when they were no longer “expected to police” people. I understand that. People can be genuine @ssholes on planes, and don’t seem to understand that when a flight attendant asks you to do something, you’re required to comply. It’s not up for debate.

    I’ll continue to wear a mask when I fly. People are gross.

    16
  3. Kathy says:

    It was so unfair to covid that passengers were off limits to it on airplanes.

    6
  4. OzarkHillbilly says:

    Mark Hoofnagle
    @MarkHoofnagle

    So 3000 people die once and it’s no liquids, take off your shoes forever. 3000 people die every 2 days and it’s like “but masks are haaaard”.

    Just want to make sure I’ve got this right.

    QFT

    23
  5. Cheryl Rofer says:

    The numbers of cases are already increasing. They will increase more quickly now. In a couple of weeks, we will hear that people who were traveling this week are sick. Some will die.

    If we are extremely lucky and vaccinated immunity and infection immunity are high enough, along with those of us who continue to mask, this peak will be lower than previous ones. The media will attribute it to omicron variants. Anti-maskers will feel righteous and continue to believe that the pandemic is over.

    7
  6. Michael Cain says:

    Have district court judges always issued national-scope injunctions, or is this a recent development?

    1
  7. SKI says:

    @Michael Cain: Yes but its happening more, particularly with targeted litigation in single-judge districts.

  8. wr says:

    This “judge” and her ilk are the doom of the nation. They don’t care about the law or the constitution, only their Christianist-cult belief system, and they are willing to use their power to enforce their religious edicts with the force of law. And then they will be backed up by the radical reactionaries on the Supreme Court.

    At some point real Americans are going to have to stand up to reject the power of this insane cabal. But the Biden administration is far too timid when it comes to calling out these Federalist Society hacks…

    5
  9. MarkedMan says:

    @wr: We will be years getting rid of all the Trump Trash…

    3
  10. Daryl and his brother Darryl says:

    Just watch what happens to cancellations now, because airlines are short on staff.
    The former guy appointed 9…nine…of these unqualified time bombs.
    We will be paying the price for that for years to come.
    You could not pay me to fly right now.

    2
  11. Crusty Dem says:

    To anyone looking to minimize the damage here – we had plenty of case studies before with “vanilla” COVID 1.0 – and it’s clear that without masks 2-14 hr flights resulted in plenty of spread. And nothing has changed with airflow or filtering since then. With “spicy” omicron version 1.2/1.4/1.5? I’ll be flying with an N95 and still don’t love my chances… Hoping that getting boosted tomorrow helps out…

    2
  12. Tony W says:

    Meanwhile, people who boarded planes in good faith that that flight would be fully masked up, were surprised when announcements were made *mid flight* that masks were no longer required, causing many on these flights to simply remove their masks.

    2
  13. gVOR08 says:

    @MarkedMan:

    We will be years getting rid of all the Trump Trash…

    If we’re lucky.

    1
  14. Kingdaddy says:

    A friend just got COVID during a cross-country trip. Of course, he could have contracted it in all kinds of places, but he’s a very careful person about unnecessary exposure. So what was the confined, poorly ventilated, densely populated setting that he could not avoid?

    2
  15. Kathy says:

    @Kingdaddy:

    Airplanes are well-ventilated and make use of HEPA filters, but only once the engines are turned on. The APU doesn’t run the air conditioner packs.

    Other than that, the highest risk is at the terminal, the gate, and in particular the jet bridge. The last is not ventilated at all and usually many people cram into it.

    Early in the trump pandemic, there were may reports of airline crews and passengers getting COVID. I’ve seen no recent info since then.

    4
  16. gVOR08 says:

    They noted that Congress had authorized health officials to make and enforce regulations “necessary to prevent the introduction, transmission, or spread of communicable diseases” from outside the country, or within it, using “sanitation” and “other measures.”

    IIRC one of the 1/6 defendants got off because he was charged with obstructing an official proceeding under a post ENRON statute that prohibited obstruction by 1) destroying documents, 2) other. One would assume they wrote “other” understanding they couldn’t exhaustively list every possible means and wanted to leave some flexibility. Is it part of Originalism that “a, b, c, or other” means “a, b, and c only”?

    And what Mr. Bauer said, “Why not?” Why not require masks? Because some RW legal entrepreneur was able to find some lady who claimed it made her anxious? We’re catering to individuals with anxiety but not to individuals with immune deficiency?

  17. Slugger says:

    I think that masking is helpful, but the way we do it doesn’t make sense to me. I was on a flight a week ago and tightly masked up. Then the flight attendant passed out beverages, and we all unmasked for twenty minutes. How can this partial masking be effective?

    2
  18. Kingdaddy says:

    @Kathy: I stand corrected.

  19. Gustopher says:

    Isn’t Britain seeing a lot of flight cancellations now that they have lifted all covid restrictions on flights? Something about how many flight crews have covid?

    If you don’t like wearing a mask, you’re really not going to like your flight being delayed or cancelled.

    Anyway, this is just par for the course in the American embrace of covid.

  20. Gustopher says:

    @Slugger: In flight or on the ground? The filtration systems are running when the engines are running, so in flight snacks are safer.

    1
  21. Kathy says:

    @Slugger:

    It’s more effective than no masking.

    At work, most of the department gathers at what a coworker and I call the COVID table for lunch. It’s two tables we use for work. They stay unmasked for about half an hour while they eat and talk. We haven’t had an outbreak past the one early this year, and that contagion probably happened in the management office, where nine people spend their day there without masks, and there’s no ventilation. Four were taken out by COVID, all recovered.

    Lately hardly anyone wears a mask. All are supposed to have taken up vaccines, and most boosters, but how can you really tell?

    @Kingdaddy:

    Your friend could still have caught it on the flight. As I said, there’s little ventilation while the plane sits at the gate (though doors are open). Even with good ventilation, if you sit close to someone who’s infected, the virus can reach you before it’s sucked up in the gentle air currents.

    The terminal and jet bridge, though, are far more likely candidates.

  22. Jen says:

    @Kathy:

    The terminal and jet bridge, though, are far more likely candidates.

    Or anywhere eating and drinking indoors. I was very particular about where and when I ate during my travel last November. When I left my hotel room, my mask was on. I was fortunate to have traveled where the weather was good, so I ate virtually every meal, snack, etc. outside. I did not eat anything at the airport, and I only drank water on the flight once it was off the ground.

    I also paid extra $$ to fly the comfort plus or whatever they’re calling the slightly-above cattle class on Delta.

  23. Kathy says:

    @Jen:

    I also paid extra $$ to fly the comfort plus or whatever they’re calling the slightly-above cattle class on Delta.

    In essence it’s the 90s throwback ripoff section 😉

    In some airlines, it used to be called the exit row.

  24. EddieInCA says:

    As I’ve said before on this forum, I will never fly again without being masked with an N95. Forget Covid. Masking on flights greatly tilt the odds in my favor of not getting the regular flu, or even a common cold. To me, it’s a no brainer.

    Anyone who wants to take their masks off in a petri dish like an airplane on a flight from LA to NYC or Miami, go for it. I’ll have my mask vacuumed onto my face.

    5
  25. Just nutha ignint cracker says:

    @OzarkHillbilly: To paraphrase:

    3000 people dying once is a tragedy. 3000 people dying every other day is a statistic.

    […]

    Then again, the fact that the administration immediately dropped the masking requirement rather than seeking an emergency stay from a higher court would seem an indication that they think the ruling will stand.

    Or that the CDC decided if “we, duh peepul” don’t care, why should we, the bureaucracy?

  26. Just nutha ignint cracker says:

    @Kingdaddy: Well, it couldn’t have been an airplane. The article cited Friends of Air Travel or whoever it was saying that air filtration on airplanes is better than in hospitals.

    And while I’m here, have you ever thought about the fiduciary advantages available from buying toll bridges and running your own toll bridge authority? Even now, opportunities are opening, and I can help you access this powerful infrastructure-investment opportunity.

  27. Just nutha ignint cracker says:

    @gVOR08: “Is it part of Originalism that ‘a, b, c, or other’ means’“a, b, and c only’?” Clearly, that will depend on what “other”s are being discussed and who wants/benefits from them.

  28. Franklin says:

    @Tony W: Ahteed. Regardless of where one stands on the decision, having it be issued with immediate effect was totally irresponsible. I think you complaint is vslid even for people who had booked a flight in the coming days or weeks.

  29. Franklin says:

    Sorry for typos I missed: Agreed & valid

  30. Raoul says:

    Vox.com has a compelling column on the wrongheadness of the opinion. Basically extreme narrow semantic construction of the term sanitary based on statutory interpretation which is probably reflective of her inexperience.

    2
  31. gVOR08 says:

    @Raoul:

    which is probably reflective of her inexperience.

    Or more likely her biases.

    Coney Barrett says Federalist judges aren’t biased, we should read the decision and see how they’re just following the law. Which is to say her qualification for the job is the ability to write a plausible sounding rationale for a predetermined outcome.

  32. DK says:

    …the fact that the administration immediately dropped the masking requirement rather than seeking an emergency stay from a higher court would seem an indication that they think the ruling will stand.

    Nah, it indicates the Biden admin is tired of fighting the pro-COVID crowd, ready to let Darwanism run rampant (apologies to the inevitable collateral damage), and was thus inclined to let the mandate expire on May 3 as planned, pending CDC sign-off.

    The ruling is poorly-reasoned right wing judicial activism and should be reversed for sake of precedent alone:

    …this law is broadly worded, and it specifically gives the CDC the power to enact “sanitation” regulations that protect public health. Mizelle gets around the law’s broad wording largely by defining the word “sanitation” very narrowly and misreading other portions of the statute…

    …it’s unsurprising that the CDC used its authority more aggressively to confront a historical crisis than it did to fight more ordinary diseases.

    And really, why on earth would Congress write a statute to permit the CDC to clean up a mess, but to forbid it from preventing that mess from occurring in the first place? As Mizelle’s opinion shows, a lawyer of sufficient ability can offer a legalistic justification for nearly any result that they want. But that’s not the role of a judge.

    …Mizelle invents a distinction between CDC regulations governing “property” and CDC regulations governing “an individual’s liberty interests” that is directly counter to the statutory text.

  33. DK says:

    @Slugger:

    I was on a flight a week ago and tightly masked up. Then the flight attendant passed out beverages, and we all unmasked for twenty minutes. How can this partial masking be effective?

    For the same reason two hundred automobile passengers wearing seat belts for 3 hours 40 min of every four hours they’re on the road is more effective than them wearing seat belts for 0 min.

  34. Paul L says:

    Democrats should pass a law forcing masking and creating a Federal gun registry (Universal Background checks).

    Yes, I recall all the outrage from the Left when a single, unelected judge used his/her power to block Trump policies. You know, because of the process concerns.

    They have to believe that we can’t remember their cheers because, the hypocrisy would otherwise be humiliating.

  35. Paul L says:

    @Paul L:
    See the DHS memo DACA that superseded Federal Law and Presidential Constitutional Power until the Supreme Count overturned it.
    I am guessing that hypocrisy will upset the OTB community and DACA (Hawaii v. Trump) will be declared a verboten subject.

  36. James Joyner says:

    @Paul L: I’ve been pretty consistent on this, I think.

    1. I’m very uncomfortable with giving individual District Court judges the power to overturn national policy.

    2. To the extent one President can issue an Executive Order, another should be able to rescind it that way.

    3. But the Administrative Procedure Act is a thing. We learned about it a lot because the Trump Administration was very careless in execution of policies they had every right to enact, and thus tripped over the APA. That seems to have happened to Biden here.

    1