29.03.2024

Biden Administration May Appeal Mask Mandate Ruling

As the administration considered its options on Tuesday, White House officials, including President Biden himself, were cautious in their public remarks. On a trip to New Hampshire to promote infrastructure spending, the president was asked by reporters whether people should wear masks on planes.

“That’s up to them,” Mr. Biden replied.

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 11th 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.)

Dr. Thomas Frieden, who directed the C.D.C. for eight years under President Barack Obama, noted that the C.D.C. has “very little regulatory authority” and said other pandemic-related actions — including a moratorium on evictions and the use of the border authority known as Title 42 to keep immigrants from seeking asylum — may have, in effect, reduced the agency’s political capital to keep the mask mandate in place.

“The broader question is, what is the appropriate use of mandates,” Dr. Frieden said. “The clearest case is for interstate travel, and so there is the risk that by pushing the envelope on other issues, we lost some of the narrative on what is an appropriate use of mandates.”

Some supporters of the mask mandate have viewed an appeal as risky.

“As tempting at 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.

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