Two days ago, a U.S. district judge struck down the federal mask mandate for airplanes and other mass transit and the Transportation Security Administration has since stopped enforcing the mandate. But the Biden administration may not let go of its precious pandemic security theater that easily.
"The Department of Justice and the Centers for Disease Control and Prevention (CDC) disagree with the district court's decision and will appeal, subject to CDC's conclusion that the order remains necessary for public health," Justice Department spokesman Anthony Coley said yesterday.
"The Department continues to believe that the order requiring masking in the transportation corridor is a valid exercise of the authority Congress has given CDC to protect the public health," Coley continued.
The CDC has claimed all along that it has the authority to impose a mask mandate on all airplanes, subway systems, trains, and buses because of the Public Health Service Act of 1944. It contended that disease prevention was a form of sanitation.
District Court Judge Kathryn Kimball Mizelle ruled that the CDC lacked such authority. The transportation mask mandate constitutes not sanitation but "an exercise of the CDC's power to conditionally release individuals to travel despite concerns that they may spread a communicable disease (and to detain or partially quarantine those who refuse)," she opined. And this power "is ordinarily limited to individuals entering the United States from a foreign country."
The transportation mask mandate was set to expire this week. But on April 13, it was extended until May 3 as the CDC assessed whether it was still necessary. "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," said Coley.
President Joe Biden told reporters yesterday that, for now, whether people should wear masks on airplanes is "up to them."
Washington Post writer Megan McArdle suggests that it's "telling" that that administration "did not immediately commit to filing an emergency appeal":
I suspect some in the Biden administration have come to the same conclusion that much of the country has reached: It is time for indoor mask mandates to end. They had to end sometime, after all, and if not now, when?
Except as we've all learned in the decades after 9/11, airplane security measures put in place "temporarily" can actually stretch on indefinitely.
Mask mandates on airplanes and avenues of mass transportation were also billed as temporary measures. McArdle suggests that failing to let them go now could further undermine the credibility of public health authorities:
As we have discovered, public health measures have to bear some relationship to what the public thinks is reasonable. Otherwise, no matter how sound their logic or scientific basis, they will fail because people will not comply. A nation resentfully wearing masks pulled down under its noses isn't doing anyone much good.
Mask mandates and the like were sold as temporary measures. Remember "flatten the curve"? Every time public health experts promised a short-term solution that turned into a long-term lifestyle change, their credibility took a hit. It cannot afford many more.
But public health powers may see it differently, believing that their credibility depends on shows of force and no one being allowed to question them.
"White House official tells me they expect CDC to agree on need for appeal," reports The Washington Post's Dan Diamond, citing some interesting (and infuriating) reasoning. "Officials are worried about the long-term risk of CDC's authority being undermined."
If that's true, it means officials are setting "public health rules" not based on actually protecting public health but on saving face and preserving power.
FREE MINDS
Conspiracy theories are undergoing a vibe shift. "We used to think of conspiracy theorizing as the province of the X-Files lone weirdo doing a string map on the wall," notes Bonnie Kristian at The Week. This old style of conspiracy mongering revolved around people acting like detectives.
But things have changed. Now, "there is no punctilious demand for proofs, no exhaustive amassing of evidence, no dots revealed to form a pattern, no close examination of the operators plotting in the shadows," write Nancy L. Rosenblum and Russell Muirhead in A Lot of People Are Saying: The New Conspiracism and the Assault on Democracy. "The new conspiracism dispenses with the burden of explanation. Instead, we have innuendo and verbal gesture … conspiracy without the theory."
Kristian suggests that community has replaced sleuthing—"conspiracism now is a group project"—and that this is embodied by the controversial conservative TikTok account Libs of TikTok.
FREE MARKETS
Florida won't stop attacking private companies. On Tuesday, Gov. Ron DeSantis, a Republican, asked the state legislature to revoke Disney's decadeslong self-governing status and also threatened Twitter's board of directors. It's the latest in DeSantis' war on free enterprise and free speech. "Culture war conservatism leads to less private industry freedom for the pettiest of reasons," Scott Shackford lamented yesterday.
Florida's authoritarian socialist attacks on the private sector are driving businesses away. In CO, we don't meddle in affairs of companies like @Disney or @Twitter. Hey @Disney we're ready for Mountain Disneyland and @twitter we're ready for Twitter HQ2, whoever your owners are https://t.co/r7Vcvu20eb
— Jared Polis (@jaredpolis) April 19, 2022
DeSantis is mad at Disney for opposing a recently passed Florida bill concerning school curriculum. He's mad at the Twitter board for moving to prevent acquisition by Elon Musk.
"We're gonna be looking at ways the state of Florida potentially can be holding these Twitter board of directors accountable for breaching their fiduciary duty," said DeSantis.
"There are three major legal obstacles" to DeSantis suing Twitter, noted UCLA law professor Steve Bainbridge. For one, Florida's State Retirement Fund owns stock in Twitter, "which is a fiduciary of the fund's beneficiaries. The administrators can't undertake a suit not in their interest." More below:
3/ In the extremely unlikely event that @GovRonDeSantis somehow got the Florida retirement fund to sue #Twitter and they somehow got past the demand requirement of derivative litigation, they would run smack into the business judgment rule. And then they would lose.
— Steve Bainbridge (@PrawfBainbridge) April 19, 2022
QUICK HITS
• A British judge says Wikileaks founder Julian Assange can be extradited to the U.S. to face spying charges. "The case will now go to Britain's interior minister for a decision, though the WikiLeaks founder still has legal avenues of appeal," reports the Associated Press.
• It can take weeks to get an abortion in the U.S. An analysis from FiveThirtyEight found "that while clinics in the states surrounding Texas are particularly taxed right now, wait times of a week or more are already fairly common in other parts of the U.S., even in deep-blue states like California and New York." And 12 percent of abortion providers surveyed said "the first available appointment was more than two weeks away."
• Texas prosecutor Ralph Petty had a secret side hustle working "as a law clerk for the same judges he was trying to convince to side with him by day," reports Reason's Billy Binion.
• The idea "that societies were naturally egalitarian and communal before farming is widely influential and quite wrong," suggests Manvir Singh, writing for Aeon.
• Small and rural counties are making some exciting strides in criminal justice reform, writes , co-founder and executive director of Partners for Justice.
• It's time to rethink prison strip searches.
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