Biden administration probably won't challenge mask ruling, experts say

Editor's note: On Tuesday afternoon, CNN reported that during a news conference U.S. Department of Health and Human Services Secretary Xavier Becerra said the administration would likely appeal federal district court judge Kathryn Kimball Mizelle's ruling. Later on Tuesday, the U.S. Department of Justice said in a statement that the administration would appeal if CDC officials find it necessary.

U.S. airlines and the Federal Aviation Administration on Monday took just hours to announce that they’d stop enforcing a federal transportation mask mandate, once a Florida federal judge said the Centers for Disease Control and Prevention illegally adopted the rule in February 2021.

The implications for the future of transportation mandates are unclear, legal experts say. Still, experts believe the Florida ruling will go unchallenged. They predict private transportation companies will do away with mask rules, especially since other parts of the private sector have already done away with the requirements.

On Tuesday, ride hailing companies Uber (UBER) and Lyft (LYFT), dispensed with mask requirements for both riders and drivers. The change followed similar announcements on Monday by major U.S. commercial airlines, American Airlines (AAL), Delta Air Lines (DAL), Southwest Airlines (LUV) and United Airlines (UAL).


Experts say although the issue is arguably ripe for argument before the Supreme Court, the CDC and the Biden administration probably won't appeal the ruling. For one, the court’s conservative majority, they explain, has already ruled against vaccine mandates for most U.S. workers. In addition, dropping hospitalizations coupled with mask fatigue may be lead fewer voters to back the idea. Without an extension, the mandate was set to expire on May 3. For Biden's part, the judge terminated his role as a defendant in the case, centering her ruling squarely against the CDC.

A sings is posted urging travelers to wear a protective masks as a precaution against the spread of the coronavirus at the Philadelphia International Airport in Philadelphia, Tuesday, April 19, 2022.  A federal judge's decision to strike down a national mask mandate was met with cheers on some airplanes but also concern about whether it's really time to end one of the most visible vestiges of the COVID-19 pandemic.  (AP Photo/Matt Rourke)
A sign is posted urging travelers to wear a protective masks as a precaution against the spread of the coronavirus at the Philadelphia International Airport in Philadelphia, Tuesday, April 19, 2022. (AP Photo/Matt Rourke) (ASSOCIATED PRESS)

While other federal courts have ruled in favor of a transportation mask mandate, the Florida judge who handed down Monday's ruling, Trump appointee Kathryn Kimball Mizelle's ruling would likely garner support from the Supreme Court, according to Harry Nelson, Founder of the law firm Nelson Hardiman.

The Supreme Court already overturned a COVID-19 vaccination mandate adopted by the Occupational Health & Safety Administration that required companies with 100 or more workers to employ only a fully vaccinated workforce, Nelson pointed out. President Joe Biden directed OSHA to adopt that mandate.

Similarly, Nelson said, by executive order, Biden directed the CDC to adopt a transportation mask requirement to promote “sanitation.” The rule required masking in airports, train stations, and bus depots, and on board airplanes, trains, and buses.

Judge Kimball Mizelle wrote in her order that the CDC exceeded its authority when it imposed its mask requirement and imposed criminal non-compliance penalties.

In a statement to Yahoo Finance, a Biden administration official said the CDC was reviewing Judge Kimball Mizelle’s decision and assessing potential next steps. In the meantime, the official said, the CDC’s public transportation masking order is “not in effect at this time” and TSA will not enforce its mask policy.

Jenifer​ Bologna, an attorney for Jackson Lewis, said she doesn't expect the CDC to appeal the ruling given the mask mandate was meant to expire in May and that transportation companies, including airlines, had been pushing back against it.

“I think practical considerations, more than just legal, weigh into whether they are going to appeal this decision,” she said, noting the CDC’s current heat map for COVID-19 transmission rates shows most U.S. levels as low.

Still, state and local governments can continue to implement and enforce mask requirements, regardless of the ruling.

“They could say…for public transportation in the state of New York, for example, you still are required to wear masks, and at all the hubs — all the bus terminals and all the subways,” Bologna said. “That would be within [the governor’s] authority to do it.”

Alexis Keenan is a legal reporter for Yahoo Finance. Follow Alexis on Twitter @alexiskweed.

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