Biden Administration is Still Weighing Appeal Against Judge’s Decision to Strike Down Federal Face Mask Mandate, DOJ Spokesperson

The U.S. Department of Justice announced on Tuesday that it will appeal a decision by Florida District Judge Kathryn Mizelle to strike down the federal face mask mandate on public transport.  In a statement, DOJ spokesperson Anthony Coley said both the Department of Justice and the Centers for Disease Control and Prevention (CDC) disagreed with the decision and would likely appeal to a higher court.

A final decision on whether to appeal, however, will only be made if the CDC decides that “the order remains necessary for public health”.

“The Department continues to believe that the order requiring masking in the transportation corridor is a valid exercise of the authority Congress has given CDC to protect the public health,” Coley said.  “That is an important authority the Department will continue to work to preserve.”

In vacating the mandate, Judge Mizelle determined that the CDC had overreached its authority when it introduced the face mask mandate last January by failing to follow the normal rulemaking procedure.  Lawmakers should normally be given time to comment on a new rule like the face mask mandate but the CDC bypassed this stage citing the “public health emergency”.

The mandate has been extended several times, most recently for a further two weeks through to May 3.  The CDC said this extension was necessary to evaluate the impact that the BA.2 Omicron sub-variant is likely to have on serious COVID-19 infections, hospitalizations, and deaths.

There has been a slew of legal attempts to have the face mask mandate vacated on the grounds that the CDC ignored the normal rulemaking procedure but the case brought by lobby group the Health Freedom Defense Fund was the first to succeed.  Judge Mizelle concluded the mandate “exceeded the CDC’s statutory authority” and that the public health emergency didn’t give the CDC power to “act unlawfully even in pursuit of desirable ends”.

In the hours after the judgment, confusion reigned as legal experts wrangled over whether the Transportation Security Administration still had the authority to enforce the mandate on behalf of the CDC.  In the end, the White House ordered the TSA to end enforcement pending an appeal.

Airlines and other public transport providers reacted almost immediately to the news, lifting face mask rules as soon as they received confirmation and in some cases telling passengers and crew mid-flight that face masks were no longer required.  

The DOJ, however, has now confirmed that the mandate could be resurrected.  “On April 13, 2022, before the district court’s decision, CDC explained that the order would remain in effect while it assessed current public health conditions, and that the Transportation Security Administration would extend its directive implementing the order until May 3 to facilitate CDC’s assessment,” Coley said.

“If CDC 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.”