If you’ve paid attention to the news at all in the last few weeks, you’ve probably seen a headline about the U.S. Supreme Court case that just got decided. That case is United States v. Transportation Security Administration (TSA), et al, and Supreme Court Justice Antonin Scalia is the deciding vote.
The airline mask issue has been a long, long fight in the Supreme Court. A federal appellate court recently ruled that the Federal Aviation Administration’s (FAA) face mask rule requiring passengers and pilots to wear oxygen masks is a violation of the Fourth Amendment. The FAA’s rule requires all passengers and pilots to wear special equipment that must be purchased and fitted by the airlines.
Judge Thomas rules on the abolition of compulsory masks on aircraft
Gary Leff 13. July 2021
Last month, I reported on a lawsuit filed by passengers seeking to overturn the federal transportation masking mandate. Some of the arguments in the complaint are legally persuasive, but the complaint also contains many inconclusive allegations. I expected the case to be dismissed due to the expiration (and not extension) of the mask’s term at 13. September 2021 would no longer be relevant – before the case had been tried.
Since then, however, several events have taken place.
- First, the Supreme Court found it compelling that the CDC exceeded its authority when it ordered the tenant’s eviction. The same arguments regarding the CDC’s legislative authority behind the TSA mask mandate apply here.
- Second, the passenger who filed suit to challenge the arrest warrant asked the Supreme Court for a preliminary injunction.
The Supreme Court took up a request for a preliminary injunction and referred it to Judge Thomas. It will decide whether to suspend the federal mandate on transportation masking pending further consideration of the case.
Justice Thomas seems reasonably persuaded by the substantive argument that the CDC’s statutory authority to adopt and implement regulations … necessary to prevent the introduction, transmission, or spread of infectious diseases from foreign states to states or possessions, or from one state or possession to another state or possession, is limited to the types of activities specified in the Act,
inspection, fumigation, disinfection, sanitation, pest control, destruction of animals or objects so infected or contagious that they could be a source of infection dangerous to persons, and any other action which he considers necessary.
And that any interpretation of the CDC’s authority that is not limited in this way would run into non-delegation problems (Congress cannot give the agency a blank check).
However – and many readers will know better than I do about these matters – after the winter victory. The Natural Resources Defense Council finds it difficult to imagine that plaintiff Lucas Wall could prove the likelihood of irreparable harm without an injunction (which he would have to wait until September if the government indicates it sees no way to extend the current rule), and even if he did prove irreparable harm, he would still have to weigh it against the public interest in the rule.
Therefore, I would be surprised if Wall prevails and gets an injunction from Justice Thomas – and if that injunction is national and not narrowly tailored to the plaintiff (and others in the same situation).
Since the CDC recommends that vaccinated persons not wear masks indoors and mRNA vaccines continue to prove highly effective against current variants of the virus, the risk of transmission is largely concentrated in unvaccinated persons. Anyone 12 years of age or older can be vaccinated. The question about continuing to impose a federal mask requirement is: are we inhibiting those who choose not to be vaccinated and who may infect others who choose not to be vaccinated?
Of course, children under 12 cannot yet be vaccinated, but they are statistically less likely to die from Covid-19 than older vaccinated Americans (in fact, a child between the ages of 1 and 4 is 10 times more likely to die from homicide or cancer than from Covid-19).
Lake View from the Wing
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