April 20, 2022


U.S. District Judge Kathryn Kimball Mizelle filed a 59-page ruling to end mask mandates on airline travel and other public transportation, defining the restrictions as an infringement on Americans’ rights.

The Centers for Disease Control and Prevention released their statement Wednesday afternoon:

To protect CDC’s public health authority beyond the ongoing assessment announced last week, CDC has asked DOJ to proceed with an appeal in Health Freedom Defense Fund, Inc., et al., v. Biden, et alIt is CDC’s continuing assessment that at this time an order requiring masking in the indoor transportation corridor remains necessary for the public healthCDC will continue to monitor public health conditions to determine whether such an order remains necessary.  CDC believes this is a lawful order, well within CDC’s legal authority to protect public health.

CDC continues to recommend that people wear masks in all indoor public transportation settings. CDC’s number one priority is protecting the public health of our nation. As we have said before, wearing masks is most beneficial in crowded or poorly ventilated locations, such as the transportation corridor. When people wear a well-fitting mask or respirator over their nose and mouth in indoor travel or public transportation settings, they protect themselves, and those around them, including those who are immunocompromised or not yet vaccine-eligible, and help keep travel and public transportation safer for everyone.

Americans reacted positively when they were alerted that masks were no longer required. Still, the Biden administration’s nudging of the CDC may be the catalyst in bringing back the masks.

Notice though, that the CDC isn’t asking for the ruling to be stayed. This seems more like a way to placate Biden’s mask-obsessed base, than to seriously attempt to overturn Judge Mizelle’s ruling. As NBC reported yesterday, “The Justice Department will not, however, ask the court to stay the decision, meaning passengers will be able to continue traveling maskless while the decision is litigated.”

Related: Gottlieb: Biden has to appeal mask-mandate ruling to salvage CDC “authority”; Update: CDC pushes appeal.

As Ed Morrissey writes, “Congress could impose a federal mask mandate on air and train travel, at least, on the basis of the Interstate Commerce Clause, and predicate it on CDC recommendations in pandemics. That wouldn’t require the CDC to do anything in a regulatory sense. So why doesn’t Congress act? Because it would be tremendously unpopular, for one thing. And for another, Congress loooooves regulation through grants of authority to agencies because it allows them to avoid responsibility. If Gottlieb wants the CDC to be able to create these mandates, then he should be hitting up Congress to expand their statutory grant of authority or, better yet, deal with the issue directly. Appealing this decision won’t fix the statutory authority issue, it certainly won’t fix the APA defects that Gottlieb acknowledges, and it will be in pursuit of a policy that Gottlieb concedes should have been ended by now anyway. So what’s the point, other than to protect arbitrary and capricious abuses of power at the CDC?”

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