On Monday, April 18 US District Judge Kathryn Kimball Mizelle struck down the Center for Disease Control and Prevention’s Mask Mandate on public transportation. This Mandate was created through direction from President Biden’s Executive Order on Promoting COVID-19 Safety in Domestic and International Travel, which he issued the day after taking the Presidential Oath. As Judge Mizelle stated in her ruling:
“Approximately two weeks later, on February 3, 2021, the CDC published the Mask Mandate without allowing public participation through the APA’s notice and comment procedures…As the basis for dispensing with the ordinary APA requirements, the CDC found that “it would be impracticable and contrary to the public’s health” to delay the Mandate to seek public comment…The Mandate also disavowed being a rule under the APA.”
The APA or the Administrative Procedure Act (5 USC §551) lays out the procedures federal rulemaking must follow, including providing a public comment period. Public comment provides opportunity for not only members of the public to share their concern or support of the proposed rule, but it also provides invaluable insight into the rule’s impact from stakeholders. It was an unwise move of the CDC to create the mandate without a public comment period.
Additionally, Judge Mizelle found that the Mandate exceeded the CDC’s authority. She states that in creating the Mandate, the CDC director “relied on a section of the Public Health Services Act of 1944 (PHSA) for authority…That provision empowers him to promulgate regulation aimed at “identifying, isolating and destroying” diseases.” Part of these provisions include the implementation of “sanitation” measures to mitigate disease. The CDC used “sanitation” as the means to enact the Mandate. Yet, “the Mask Mandate is best understood not as sanitation, but as an exercise of the CDC’s power to conditionally release individuals to travel despite concern that they may spread a communicable disease.”
Following the Judge’s decision, TSA and airlines alike announced that masking on airplanes would be optional. Videos quickly surfaced online of pilots announcing the change mid-flight with passengers erupting in cheers!
It’s still not clear what steps, if any, the White House will take in response to Judge Mizelle’s ruling. As Politico reported, “White House press secretary Jen Psaki on Tuesday didn’t rule out appealing a federal judge’s ruling that struck down the CDC’s mask requirement for planes, trains and other public transportation, saying that the Biden administration is awaiting a decision from the Justice Department about how to proceed.”
President Biden is smart to let go of the Mask Mandate. The people are over it!