The Biden administration remains at a loss in responding to a federal judge’s ruling striking down the pandemic mask requirement for plane and rail travel, with the White House and various agencies struggling to devise and coordinate a legal strategy more than a day later.
That was met with surprise at the Centers for Disease Control and Prevention, which an hour later issued its own statement that did not clearly say whether the health agency wanted the Justice Department to pursue the appeal. The CDC had been reviewing whether to lift the mask order before the court killed it.
The ruling was issued by U.S. District Judge Kathryn Kimball Mizelle, who was nominated by Donald Trump and confirmed by the Senate in November 2020. Mizelle, admitted to the Florida bar in September 2012, was the eighth federal judge confirmed during the Trump administration to be rated “not qualified” by the American Bar Association, which typically requires a minimum of 12 years of experience to rate a nominee qualified.
The CDC argued that planes, trains and airports are unique disease vectors, with passengers often jammed up against one another for long stretches of time. Still, it extended the mandate by only 15 days last week, its shortest yet, and appeared poised to lift it if cases and hospitalizations driven by the BA.2 subvariant of the coronavirus don’t surge.
It is highly tempting to appeal a very dubious ruling like this, but there is a risk in doing so. If they appeal and lose, the CDC could end up powerless to take some basic public health precautions in the event of a surge in cases in the fall or winter.
Mizelle’s ruling, while momentous, is just one front in the culture war over the pandemic response, in which conservative groups have assailed what they say are onerous public health measures and pursued legal challenges to rein in agency authority.
The White House had been losing support even among some Democrats in Congress for the mask mandate well before the court ruling. The Senate voted 57-40 last month to back a resolution by Senator Rand Paul, a Kentucky Republican, to end the transportation mandate.
Most senators in both parties have long since stopped wearing masks on the Senate floor. Discussions continued within the administration on Tuesday, with some officials saying they believed an appeal was growing unlikely and others arguing it remained unclear. All the legal options were problematic in one way or another.
