The definition of “sanitation.” An old court case that involves an underwear manufacturer. Whether people had a fair chance to express their opinions about wearing masks on planes.
These disparate factors are in the spotlight as the Biden administration challenges a U.S. District Court ruling that overturned a federal mask mandate on public transportation. The outcome could determine the limits of federal public health officials’ power not only during the COVID-19 crisis but also when the next pandemic hits.
Sound complicated? It is.
About the only thing that’s clear so far is that the Centers for Disease Control and Prevention’s mask requirement for people traveling on planes, trains, and buses is not likely to make a comeback anytime soon. The Department of Justice’s appeal of the Florida judge’s decision to the 11th U.S. Circuit Court of Appeals could take weeks or months.
What might that appeal contain, and why is it important? The government has not yet filed its detailed arguments, so KHN spoke with several health law experts about what to expect.
For starters, some legal pundits noted that the Justice Department didn’t immediately seek an injunction to block the judge’s decision. Could this be a strategic decision? Maybe.
Proponents of this theory point to a 1950 Supreme Court case that involved Munsingwear, a manufacturing company alleged to have overcharged consumers for its underwear during World War II when governmental price control rules were in effect. But price controls ended while the case was being appealed, and the justices said that in such cases lower-court rulings should be “vacated” — meaning the initial decision is wiped out and left with no legal force.
Maybe the White House plans to file an appeal but is hoping the case will be moot by the time it comes before the court, because the mask mandate was set to expire May 3 anyway, said Ilya Somin, a professor of law at George Mason University in Arlington, Virginia, and a critic of the mask rule. “The base of the Democratic Party likes the mask mandates, so they want to signal that they tried to fight for it.”
Other experts said they don’t think the government is slow-walking its appeal in hopes it will no longer be significant.
The Biden administration “does not want to see any court decisions like this sitting there unchallenged or even vacated,” said James Hodge, a law professor at Arizona State University. Even a vacated ruling could lead to “more judges issuing similar decisions because the reasoning was never shot down,” he said.
This creates high stakes for the government.
The appeal could set the parameters for the CDC’s authority in the next outbreak, and public health experts fear the lower court’s decision effectively closes “off future actions for a disease like this one,” said Erin Fuse Brown, a professor and the director of the Center for Law, Health & Society at Georgia State University.
Mask mandate opponents, however, say the federal government exceeded its authority in requiring collective action at the expense of personal freedom during the pandemic.
Where the appeals court will come down is not clear.