The New York Times
By Sheryl Gay Stolberg and Charlie Savage
WASHINGTON — The Biden administration announced on Tuesday that it intends to appeal a Florida judge’s ruling that struck down a federal mask requirement on airplanes, trains, buses, and other public transportation — if the Centers for Disease Control and Prevention decide that extend the measure is necessary.
The Justice Department and the C.D.C. “disagree with the district court’s decision and will appeal, subject to C.D.C.’s conclusion that the order remains necessary for public health,” the department said in a statement.
The announcement signaled that the government does not accept the narrow interpretation of the C.D.C.’s authority to impose such measures that the judge, a 35-year-old appointee of former President Donald J. Trump, laid out in her ruling on Monday.
But it does not necessarily mean that litigation in the case will continue. The mandate — which also applied to hubs like airports and train stations — had been set to expire on May 3 even before the judge struck it down on Monday.
If the C.D.C. decides there is a public health basis for trying to reinstate and extend the mask mandate, the Justice Department will swiftly file an appeal. But if the C.D.C. decides otherwise, the administration will not appeal and the case will instead end as mooted — but without any signal of executive branch acquiescence to the judge’s view of its authority.
The Justice Department “continues to believe that the order requiring masking in the transportation corridor is a valid exercise of the authority Congress has given C.D.C. to protect the public health,” the statement said. “That is an important authority the department will continue to work to preserve.”
It continued: “If C.D.C. 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.”
The Centers for Disease Control and Prevention imposed the mandate in early 2021. It had already extended it several times, most recently on April 13 when it said it wanted to keep it in place several more weeks while it assessed the potential severity of the Omicron subvariant known as BA.2, which recently became the dominant version among new U.S. cases.
The announcement came hours after President Biden said Americans should decide for themselves whether to wear masks. The decision is “up to them,” Mr. Biden told reporters during a trip to New Hampshire to promote infrastructure spending.
The Federal District Court judge in Tampa who struck down the mandate — Kathryn Kimball Mizelle — put forward a sharply constrained interpretation of the C.D.C.’s legal authority under the Public Health Service Act of 1944. If her view prevailed, the agency’s hands would be tied in future public health crises.
But a ruling by a district court judge is not a binding precedent. Appealing the matter would carry the risk that the court that oversees her — the Court of Appeals for the Eleventh Circuit in Atlanta — could issue a ruling that constrains the agency’s future conduct at least in its region, the Southeastern United States. A majority of the judges on that circuit are also Trump appointees.
And above it, the Supreme Court has a six-to-three conservative majority. In January, it blocked a Biden administration edict that large employers require workers to get vaccinated or submit to regular testing. (On the other hand, the court has permitted military officials to require service members and reservists to get vaccinated; it also upheld a federal mandate requiring health care workers at facilities receiving federal money to be vaccinated.)
Some supporters of the mask mandate have viewed an appeal as risky.
“As tempting as it is to appeal it because it’s a ridiculous ruling, the bigger issue is that you need to reserve the ability for the C.D.C. to act in case we have a big outbreak in the fall or the winter,” said Andrew Slavitt, a former senior health adviser to the president who helped run the administration’s Covid-19 response.
“Trump-appointed 234 federal judges,” he added, “and if you end up there or in the Supreme Court, you could really damage your ability to respond to the pandemic in the future.”
As a matter of politics, support for mask mandates has fallen in opinion polls as it has become clearer than healthy people who have been vaccinated and boosted — as well as those who remain unvaccinated but have survived a bout of Covid-19 — are generally at lower risk of experiencing severe or life-threatening symptoms if they get infected.
“The country clearly wants to move on,” said David Axelrod, a Democratic strategist who served as senior adviser to President Barack Obama. “Mandatory masking is a volatile issue. So my instinct is that the path of least resistance would be to stand down, on the grounds the clock is quickly running out anyway.”
But some people remain strongly in favor of such mandates. They have pointed to the continuing serious risk that any infection poses to immunocompromised people despite vaccination, and to the fact that very young children — while less likely to experience significant symptoms — are not eligible for vaccination.
Monday’s ruling took officials in the White House by surprise and frustrated them, two senior officials said. But on Tuesday, as travelers aboard airplanes took directions from pilots to unmask and riders aboard transit systems went mask-free, the Biden administration did not lay out a detailed plan to contest the ruling, even as public health experts warned that the C.D.C.’s authority to prevent the spread of a contagious virus was on the line.
Jen Psaki, the White House press secretary, said the decision to remove the masking decision should have been up to the C.D.C., not the courts.
Inside the C.D.C., officials felt their most recent extension of the mask mandate was reasonable — just 15 days — to give them time to assess the evidence and make a considered decision about whether to continue it.
“C.D.C. scientists had asked for 15 days to make a more data-driven durable decision,” Dr. Ashish K. Jha, the new White House coronavirus response coordinator, wrote on Twitter. “We should have given it to them But I’ll continue to follow CDC guidance & mask up on planes.”
Sheryl Gay Stolberg is a Washington Correspondent covering health policy. In more than two decades at The Times, she has also covered the White House, Congress, and national politics. Previously, at The Los Angeles Times, she shared in two Pulitzer Prizes won by that newspaper’s Metro staff.
Charlie Savage is Washington-based national security and legal policy correspondent. A recipient of the Pulitzer Prize, he previously worked at The Boston Globe and The Miami Herald. His most recent book is “Power Wars: The Relentless Rise of Presidential Authority and Secrecy.”