The litigation to Biden administration’s transportation mask mandate, which was rejected by a federal judge in April 2022, is still ongoing.
Even when the judge’s order to end the mask mandate was in effect, the Biden administration never asked for a stay. They ended the mandate without taking responsibility or being criticized, but they could still criticize a judge appointed by Trump.
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But some of the administration wanted to protect the CDC’s rights, so they went to court even though they no longer believed in the mandate enough to push for its continuation.
The U.S. Court of Appeals for the Eleventh Circuit dismissed the case as moot because the mandate no longer exists, the national emergency has ended, and the public health emergency has been allowed to end. If the administration were to win, the court found that there was no longer a mandate it could uphold.
Since the President’s party controlled both houses of Congress then, Congress could have mandated using a mask. That was not their decision. Instead, the administration used the same 42 U.S.C. 264 expansion of CDC authority that the Supreme Court rejected in the eviction moratorium case.
The rule’s weakest point of attack was the District Court’s focus on Administrative Procedures Act issues in overturning the mandate.
- The CDC relied on its authority under 42 U.S.C. 264(a) to “make and enforce such regulations..necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession.” to issue the mask rule.
- The following are some examples of what the CDC might want: inspection, fumigation, disinfection, sanitation, pest extermination, destruction of infected animals or items that threaten human health, and any other measures he deems necessary.”
- Congress restricted the CDC’s authority by providing examples of possible actions (‘other measures’ must be comparable to those specified).
- Additionally, Congress would have violated the non-delegation doctrine if it had not restricted the CDC’s authority in its authorizing statute, as Congress cannot grant an agency the authority to legislate for itself.
However, I have never bet against courts upholding the government’s authority.
However, the court vacated the district court’s decision and appealed because the issue was irrelevant. The fact that there is no precedent against a mask mandate and no precedent limiting the CDC’s authority is a victory for the Biden administration.
On the day the order vacating the mask mandate was issued by the district court judge, I had predicted that the Biden administration would appeal and that the case would be dismissed because the mask mandate would have expired before it was decided. In the end, that is what transpired.
