Thanks to a ruling by a federal judge in Tampa, Florida, on April 18, many have been traveling on public transportation maskless. However, two days after the ruling, the Biden administration announced that it would appeal. On its face, the administration is trying to sue the mandate back in place.
The Justice Department’s action followed much dithering by the administration, including President Joe Biden publicly saying that the decision would be appealed only if the Centers for Disease Control and Prevention thought it necessary. Critics of the president pointed out that public health experts almost always feel more significant intervention is required and were not shocked when the CDC suggested just that.
“Defendants hereby appeal to the United States Court of Appeals for the Eleventh Circuit from the Court’s order and judgment issued April 18, 2022 (ECF Nos. 53, 54), granting Plaintiffs’ cross-motion for summary judgment (ECF No. 48) and denying Defendants’ motion for summary judgment (ECF No. 45), and from all previous rulings in this action,” was the whole of the notice filed by the DOJ on April 20.
Legal analysts quickly seized on something missing from the appeal notice: a request for a stay.
Judge Kathryn Kimball Mizelle had found that “the mask mandate exceeds the CDC’s regulatory authority and violates the procedures required for agency rulemaking under the [Administrative Procedure Act].” Because of that finding, she ruled, “the Court vacates the mandate and remands it to the CDC.”
Those words ended the transportation mask mandate across the entire United States. By not asking for a stay of her order, the administration ensured that however this is resolved, the country will have gone weeks or months mask-free on public transportation. In that case, why bother challenging the rule?
If the Biden administration “really thought it was essential to have the mask mandate in place because it was saving a bunch of lives,” then this was not the best way to go about that, George Mason University law professor Ilya Somin told the Washington Examiner.
He speculated that by not seeking a stay, the administration indicates that “getting the mask mandate back in place is not their primary goal here.” Instead, the issue yet to be litigated is “how much power the CDC will have in the future” when it comes to issuing mandates and such.
Is the Biden administration crazy to pursue this appeal, or crazy like a fox? Somin laid out a scenario in which the appeals process could, in theory, make Mizelle’s ruling go away.
The first step would be to appeal. The second step would be to let the mask mandate expire when it is expected to on May 3, and the third step would be to ask the appellate court to vacate the lower court decision since the litigated issue has gone away.
It’s possible that the 11th Circuit would go along with that, though the judges could refuse to do so as well.
Whether or not stretch-out-and-vacate is the strategy at work here, Somin said that the odds are against the case, making it all the way to the Supreme Court. “By not seeking a stay, the Biden administration has made it less likely,” he said.
As for the merits of the decision, Somin said he thinks that Mizelle’s reasoning was deeply flawed but that some of her objections might find traction in higher courts.
For instance, in her ruling, Mizelle “adopts this very narrow and somewhat implausible meaning of the term ‘sanitation,'” he said. Somin also said he doesn’t think that her characterization of the CDC’s actions in this matter as “arbitrary and capricious” is likely to survive review.
However, when it comes to her criticism of how the CDC essentially circumvented the normal federal rulemaking process in creating a public transportation mask mandate, he said he thinks she may be on ground that higher courts could affirm.
That wouldn’t end all future mandates, but it could slow them down, limit their reach, and make future challenges much more manageable.
