Will a federal court reverse Biden’s transportation mask mandate?
Gary Leff at 26. March 2021.
One of the first actions of the Biden administration was to ask the CDC to impose a mandate on the transportation mask. For the airlines, this means that masks are already mandatory and a new exemption has been introduced that allows the wearing of masks for medical reasons, which American, American and Southwest were previously not allowed to do. But it also means that airlines won’t decide when the mask requirement will end.
Recent court rulings against the CDC’s deportation moratorium have led a prominent public health expert to believe that the courts may also rule against the mask mandate.
Three district courts have ruled against the CDC’s deportation moratorium and two have upheld it. In the past two weeks, Tiger Lilly, LLC v. US Department of Housing and Urban Development and Skyworks v. The CDC’s similar findings offered against its authority.
- CDC invokes its authority under 42 USC 264(a) to promulgate and implement regulations…necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign states to states or possessions, or from one state or possession to another. However, it gives examples of measures that may be necessary: inspection, fumigation, disinfection, sanitation, pest control, destruction of animals or objects contaminated or contaminated in such a way that they may constitute a dangerous source of contamination for humans, and other measures that it considers necessary.
- The court held that Congress, by providing examples of what the CDC can do, limited that other actions must be similar to those enumerated. The power of the CDC is not unlimited.
- And Congress still could not grant unlimited power without overturning the secrecy doctrine – Congress cannot allow the agency to legislate over its captured power.
Either the CDC’s authority is limited and it has not been granted the power to prohibit deportations, or its authority is not limited and the grant of authority is unconstitutional. In any event, the law provides no support for the CDC’s action based on these recent rulings. This conclusion of law seems reasonable, but is not uncontroversial – as I note, other district courts have ruled in favor of a CDC moratorium on evictions].
Lindsey Wiley, head of the health law and policy program at American University Washington School of Law, fears that this reasoning also invalidates the federal mask mandate.
Judges *might* find a principle to distinguish masks (something like a proximate cause test for the spread of a disease might work), but based on the *relevant* reasoning of these recent decisions, I don’t see how a mask order is acceptable if the order isn’t in the mask order.
– Lindsay Wiley (@ProfLWiley) March 17, 2021
The Court stated that when Congress authorized other measures it deemed necessary, it had other things in mind, such as inspection, fumigation, disinfection, sanitation, removal of vermin, destruction of [infected/infested] animals or property.
– Lindsay Wiley (@ProfLWiley) March 17, 2021
However, Professor Ilya Somin believes that it is likely that the specifications of the transport mask will be met,
I think this is unlikely, since the emphasis on transportation is much more closely related to the goal of preventing the spread of infectious diseases from one state or possession to another.
In addition, the restriction on movement may fall into the category of hygiene promotion of items that facilitate the spread of disease across national borders. In this case, the products concerned would be the seats and air spaces of buses, aircraft and other means of transport covered by the foreclosure decision.
These differences may explain why Biden’s advisors concluded (correctly, in my view) that he did not have the right to issue a blanket, nationwide shielding order, but could issue a much more limited, transportation-oriented order.
Last summer, the ABP was contacted about the mask mandate. I argued that this was clearly outside the agency’s statutory authority. I also argued that the FAA’s authority is limited.
This is certainly true, so the Biden administration invoked the CDC’s authority under 42 USC 264(a), an area in which I must rely on others more familiar with the relevant case law. It is clear, however, that there is at least some disagreement as to whether the federal mask mandate is legitimate, and the ongoing federal court cases related to the CDC’s deportation moratorium may provide that guidance.
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