7:45 p.m. ET update: The Centers for Disease Control and Prevention decided Monday to appeal a Florida judge’s decision that abruptly overturned the federal travel mask mandate. The Justice Department said Tuesday it would appeal the ruling if the CDC determined the mask mandate was still necessary.
In a media statement late Wednesday afternoon, the CDC said it determined masks were necessary and urged the DOJ to proceed with the appeal. “It is the CDC’s ongoing assessment that at this time, an order mandating masking in the interior transportation corridor remains necessary for public health,” the statement said. “The CDC will continue to monitor public health conditions to determine if such an order is still necessary. The CDC believes this is a lawful order that is well within the CDC’s legal authority to protect public health,” the agency added.
DOJ spokesman Anthony Coley announced in a tweet on Wednesday evening that the DOJ has appealed the CDC’s decision.
The federal mask requirement for transit remains lifted for the time being. However, the CDC continued to urge travelers to wear a mask on planes, trains, buses, subways, taxis, ridesharing services and transit hubs. “As we’ve said before, wearing masks is most beneficial in crowded or poorly ventilated places like the transportation corridor,” the agency said. “When people wear one well-fitting mask or respirator via the nose and mouth indoors or on public transport, they protect themselves and those around them, including those who are immunocompromised or not yet suitable for vaccination, and help make travel and public transport safer for everyone.
Original story: The Justice Department announced late Tuesday that it disagrees with a Florida judge’s decision that abruptly lifted the federal travel mask mandate. However, the department said it would not immediately seek an appeal or stay, which would uphold the mandate while the litigation continues.
Instead, the DOJ said it is now up to the Centers for Disease Control and Prevention to determine whether the mask mandate “continues to be necessary to the health of the public.” If the CDC determines it is necessary, the DOJ will appeal the decision.
The CDC is reportedly undecided on the matter. On April 13, just before the mask mandate was due to expire, the CDC extended it by 15 days to assess the state of the pandemic and decide if the mandate is still necessary. The agency noted the recent — and ongoing — spike in cases driven by the Omicron subvariant BA.2. “The CDC mask regulation remains in effect while the CDC assesses the potential impact of the increase in cases on major illnesses, including hospitalizations and deaths, and health system capacity,” the agency said at the time. “[The Transportation Security Administration] will extend the safety policy and emergency change by 15 days until May 3, 2022.”
Corresponding reporting from Politico, Officials in the Biden administration are still unsure how the current BA.2-driven uptrend will play out – specifically whether it will result in increased hospitalizations in the coming weeks. “There is no question that we are at a crossroads,” a senior administration official who was granted anonymity told the outlet.
Additionally, an official with the Department of Health and Human Services, where the CDC is located, confirmed to Politico that “no decision has been made” on whether to appeal the removal of the mask mandate.
In addition to the uncertainty of how the pandemic will develop, the appointment decision is politically explosive. In the court of public opinion, Americans are divided. There was cheering and visible joy among travelers on Monday as news of the judge’s order landed, with some stripping off protective face coverings mid-flight. Nevertheless acc
Associated Press-NORC Center for Public Affairs Research poll results
Collected just in the past few days, 56 percent of Americans support requiring people to wear masks on planes, trains and public transport, while 24 percent oppose the requirement and 20 percent are neither for nor against.
There are also legal concerns. The federal government clearly believes that the judge’s order was not legally sound in its decision that the CDC did not have the authority to mandate masks. “The Department continues to believe that the order mandating masking in the transportation corridor is a valid exercise of authority granted by Congress to the CDC to protect public health,” the DOJ said. “This is an important authority that the Ministry will continue to work to uphold.” Other legal experts agreed. Lawrence Gostin, a public health law expert at Georgetown University, described the order to the New York Times as saying it is “what I think it is a lawless decision by this judge.”
But if the CDC and DOJ go ahead with an appeal and lose, it could jeopardize the CDC’s ability to enforce health measures in the future. And the 11th Circuit Court of Appeals, which has jurisdiction for Florida, where the order originated, may not accommodate an appeal. As Politico notes, the majority of the appeals court justices were appointed by Republican presidents, including six Trump-appointed ones, and it’s unclear which three justices would hear the appeal.
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