WASHINGTON — The Justice Department said it is ready to appeal a ruling that eliminated the mask mandate for plane and train travel if necessary, even after some argued the best way to preserve the government’s authority was to let the case die.
Monday’s federal court ruling scuttling the requirement has posed a difficult legal and political calculus for the department and President Joe Biden, with airlines opposed to the mandate and widespread public exhaustion with masking. Late Tuesday, the U.S. said it would appeal the ruling if the Centers for Disease Control and Prevention decides that masks should remain in place past the current assessment period, which is due to expire May 3.
The government’s top priority is to protect what power it has left to enact a mandate months down the road if there’s another surge in COVID-19 cases, administration officials said earlier, speaking on the condition of anonymity as deliberations continued.
Appealing carries a significant downside, said Andy Slavitt, a former COVID response team official for the Biden administration.
“While it’s highly tempting to appeal a very dubious ruling like this, there is a risk in doing so,” Slavitt said. “If they appeal and lose, the CDC could end up powerless to take some basic public health precautions in the event of a surge in cases in the fall or winter.” With a slew of Trump-appointed judges, he said, that concern had to weigh on them.
The ruling was issued by U.S. District Judge Kathryn Kimball Mizelle, who was nominated by former President Donald Trump and confirmed by the Senate in November 2020 after being admitted to the Florida bar in September 2012. She was the eighth federal judge confirmed during the Trump administration to be rated “not qualified” by the American Bar Association, which typically requires a minimum of 12 years of experience to rate a nominee qualified.
Republicans have accused the ABA of being biased against conservatives.
Mizelle’s ruling, while momentous, is just one front in the culture war over the pandemic response, in which conservative groups have pushed back against what they say are onerous public health measures and pursued legal challenges to rein in agency authority.
The CDC argued that planes, trains and airports are unique disease vectors, with passengers often jammed up against one another for long stretches of time. Still, it extended the mandate by only 15 days last week, its shortest yet, and appeared poised to lift it if cases and hospitalizations driven by the BA.2 subvariant of the coronavirus — the pandemic’s latest threat — don’t surge.
Appealing would be a “huge mistake” for Biden, said Peter Pitts, co-founder of the Center for Medicine in the Public Interest and a former associate commissioner at the Food and Drug Administration.
The science behind COVID-19 right now is that BA.2 typically has mild symptoms, particularly for the vaccinated and boosted, as well as a very low death rate, he said. At this point, mandatory mask wearing serves only to divide the public while serving no health purpose, exacerbating “mask PTSD” for some and serving as a “virtue signal” for others, Pitts said.
The Biden administration has been weighing the politics, said Carl Tobias, a professor at the University of Richmond School of Law.
There is “some tension, with a lot of state governors and legislators deciding that very comprehensive masking is not ideal,” Tobias said.
Discussions continued within the administration Tuesday, with some officials saying they believed an appeal was growing unlikely and others arguing it remained unclear. All the legal options were problematic in one way or another, one said.
An appeal would go to the federal appeals court in Atlanta, which is ideologically conservative and might side with Mizelle, Tobias said. Her ruling drew heavily on a Supreme Court decision striking down vaccine mandates, raising the specter of the top court upholding the ruling as well.
The calculation was likely whether an appeal would probably end up at the high court, said Eric Feldman, professor of medical ethics and health policy at the University of Pennsylvania Carey Law School. “And the Supreme Court’s not likely to be all that sympathetic to the government’s position on this,” he said.
Feldman said a loss is “likely” and a win “isn’t all that useful on this.”
Instead, he said, the administration should consider whether another agency, such as the Federal Aviation Administration, might have the authority to impose similar restrictions.
The case is Health Freedom Defense Fund v. Joseph Biden, 21-cv-1693, U.S. District Court, Middle District of Florida (Tampa).
