Mask mandate ruling for planes, transportation re-ups debate over nationwide court orders

The Justice Department said late Tuesday it would appeal the decision if the CDC "concludes that a mandatory order remains necessary for the public’s health."

  • Presidents of both parties have complained about nationwide injunctions by federal courts.
  • Polls show Americans are divided on party lines about extending transportation mask requirements.
  • Expert: Supreme Court may ultimately end up resolving lingering questions about nationwide orders.

WASHINGTON – A ruling by a federal judge in Florida upending the Biden administration's mandate that Americans wear masks on planes and other forms of transportation appeared to catch travelers, airports and the White House off guard – creating a patchwork of rules that depend on a passenger's destination.

One group not surprised by the outcome: legal experts who study when and how federal courts block the enforcement of policies handed down by the executive branch, a phenomenon that has vexed presidents of both parties and appears to be on the rise. 

President Donald Trump's travel ban on predominately Muslim nations was blocked by a federal district court before his administration landed on a version the Supreme Court upheld in 2018. The eviction moratorium imposed early in the COVID-19 pandemic and extended by President Joe Biden was blocked and unblocked by lower courts before the Supreme Court ruled.

Nationwide injunctions blocking federal regulations have opened a debate among experts and lawmakers about whether the practice politicizes federal courts – or whether they are the result of presidents seeking to act unilaterally in the face of congressional gridlock. The Trump administration often railed against such court orders; his attorney general at the time, Jeff Sessions, once complained that "a judge sitting on an island in the Pacific" could block a president from exercising his power. 

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Sessions was referring to a judge in Hawaii who blocked Trump's travel ban. 

To the degree the injunctions are more prominent, it's partly because "the executive is engaged in more unilateral issuing of massive executive orders that change the landscape of the law, and that's true for both Democrats and Republicans," said Amanda Frost, a law professor at American University, who stressed she was speaking generally about injunctions and not about the particulars involved in the mask case. 

"To get rid of them would be to get rid of a vital check in our constitutional system," she said.

U.S. District Judge Kathryn Kimball Mizelle, a Trump nominee, ruled Monday that the Centers for Disease Control and Prevention exceeded its authority with the mask requirement for travelers. The 1944 Public Health Service Act, she ruled, limits the health agency's powers to measures such as inspection, sanitation and disinfection.

President Joe Biden has strongly supported wearing masks as an important tool in the nation's battle against the COVID-19 pandemic.

Mizelle nodded to the debate over nationwide orders in her 59-page decision, writing that she "recognizes the criticism about nationwide injunctive relief and admittedly shares some of the criticism about it." But, she asked, how would a flight attendant or Uber driver distinguish between the plaintiffs in the suit and everyone else? 

The lawsuit was filed by two women who said face coverings aggravate their anxiety, along with the Health Freedom Defense Fund, a nonprofit that has opposed such mandates.

The decision drew cheers from some passengers and discontent from others. It also set up an unusual situation in which some airports said they would no longer require masks but others – including Chicago's O'Hare International Airport and John F. Kennedy International Airport in New York – said face coverings would still be the rule. 

The mask mandate had been set to expire Monday. The administration announced a 15-day extension last week, saying it was needed to assess the impact of new coronavirus variants. The Justice Department said late Tuesday that it would appeal the decision if the CDC "concludes that a mandatory order remains necessary for the public’s health."

National orders common  

It’s not the first time Biden has seen enforcement of one of his orders blocked by federal courts. Nor is he the first president to face such setbacks.

The Biden administration tried last year to end a Trump-era policy that required migrants to wait in Mexico for their asylum claims to be heard. But Republican attorneys general from Texas and Missouri sued the administration after it suspended the policy, arguing that officials did not follow the law in unwinding that order.  

U.S. District Judge Matthew J. Kacsmaryk, a Trump nominee, sided with the states, which forced the administration to restart the policy, known as "Remain in Mexico." The U.S. Court of Appeals for the 5th Circuit and the Supreme Court refused to block the injunction

The administration restarted the program last year, with some changes. The case will be back before the Supreme Court for oral arguments next week.

Several federal district courts blocked the Biden administration's requirement that employees of federal contractors receive COVID-19 vaccinations, a question that is still working its way through federal courts.

A federal judge in May, meanwhile, vacated the CDC's eviction moratorium but later put that ruling on hold so the parties could appeal. The Supreme Court in August blocked the moratorium, ruling that the CDC did not have the "sweeping authority that it asserts."

Many of the cases wind up at the nation's highest court on its so-called shadow docket, where the justices decide emergency appeals after expedited briefing and without oral argument. That process has drawn increasing scrutiny not only from legal experts but also from several of the justices themselves

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Katie Keith, director of the Health Policy and the Law Initiative at the O'Neill Institute for National and Global Health Law at Georgetown Law, said that ultimately the Supreme Court probably will have to decide what to do with the issue. 

"One of the criticisms of nationwide injunctions is that they don't allow for the development of different legal opinions in different jurisdictions," Keith said, because an injunction by one federal court as it's appealed usually blocks similar litigation from moving forward in other parts of the country.

"If the Supreme Court doesn't want this to keep happening and does not favor nationwide injunctions, they're going to have to take some of these cases and weigh in on this issue," she said. 

The apparent end to mask mandates on public transportation has brought cheers, discontent and confusion among passengers.

'A canary in the coal mine'

For Biden, the judge’s ruling could carry practical and political consequences. And that's probably one of the reasons the White House isn't railing against the decision. 

White House press secretary Jen Psaki said Tuesday that the decision "should be made by public health experts."

Hours later, the Justice Department said it would defer to the CDC on whether to appeal the decision and noted that the agency already was reviewing the policy. 

"If CDC concludes that a mandatory order remains necessary for the public's health after that assessment, the Department of Justice will appeal the district court’s decision," spokesman Anthony Coley said.

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Though polls have shown that the public is ready to move on from COVID-19 and return to normal life, Americans are still divided over whether they should wear a mask on public transportation.

Fifty-one percent of people polled last month by the Kaiser Family Foundation said the mask mandate on planes and trains should be allowed to expire. Roughly 48% said it should be extended beyond its initial expiration in April.

A majority of Democrats (72%) and vaccinated adults (54%) supported extending the masking requirement. By contrast, three-quarters of Republicans (76%) and unvaccinated adults (73%) and more than half of independents (55%) preferred to let it expire.

Considering how divisive the mandate remains, the judge’s decision striking down the masking requirement may provide short-term relief for the Biden administration, said David Hopkins, an associate professor of political science at Boston College.

“The mask mandate has generated a political dilemma for the Biden administration between its stated policy of deferring to scientific experts, who have been mostly cautious about relaxing anti-COVID measures, and the declining enthusiasm among the American public for continuing to enforce restrictions,” Hopkins said. “It’s possible that the judge’s decision makes things easier for the administration in the short term by taking the mask mandate issue out of its hands.”

The long-term implications, however, may be more problematic because the ruling establishes a precedent that would make it more difficult to reimpose restrictions if there is another surge in COVID-19 cases.

“What this judge is saying is that a federal agency like the CDC doesn’t have authority to keep mitigation measures in a public health emergency. That is a major blow to executive power,” said Shana Gadarian, a political science professor at Syracuse University who has studied the nation’s response to COVID-19.

The ruling’s reach could extend beyond public health emergencies, Gadarian said.

In a climate crisis, the federal government might need to act in unprecedented ways, she said. Yet the Supreme Court decision on eviction moratoriums and the Florida judge’s ruling on the mask mandate suggest the judiciary is willing to allow use of federal agency power for only a limited amount of time, even in an emergency, Gadarian said.

The ruling could be bad news for Biden, said William Howell, a political scientist at the University of Chicago’s Harris School of Public Policy.

Presidents “are supposed to be masters of the universe and attentive to all manner of problems,” he said. “As a matter of political survival, they don't do especially well when they point toward others as having been obstructionists or to (place) blame for their inability to deliver on behalf of the American people.

“At the end of the day, Biden is going to be held accountable for the gains he’s made in combating the coronavirus. If this decision makes it more difficult to actually get a handle on the problem, then persistence is going to be a real political problem for Biden.”

The courts are “notoriously reactive” institutions that are inclined not to rule against a sitting president, Howell said.

“When they do, it's usually a sign that the president is politically vulnerable and his opponents are mobilized and have the upper hand,” he said. “If this is a canary in the coal mine, the canary dropped dead. Because it's indicative of a larger political environment.”

Contributing: Joey Garrison, Rebecca Morin