- A federal judge has ruled that the CDC cannot require that face masks be worn on airplanes or other forms of public transportation.
- The judge found that the CDC had violated its authority with the requirement.
- The mask mandate had been scheduled to end next month.
The Biden administration stopped enforcing the federal mask rule for airlines and other public transit after a federal judge in Florida struck down the mandate on Monday.
U.S. District Judge Kathryn Kimball Mizelle in Tampa said in her decision that the Centers for Disease Control and Prevention’s mask requirement for public transportation exceeded the agency’s authority.
In the 59-page ruling, Mizelle, who was appointed by President Donald Trump, also said the CDC did not follow proper rulemaking procedures — including a public comment period — and failed to justify its decision.
The court’s decision means the federal mask order is not in effect at this time, while the Justice Department and other federal agencies review the judge’s ruling.
This leaves airlines and other operators free to make their own decisions about whether to require passengers and employees to wear masks.
However, people traveling on public transportation would still need to comply with any local mask orders.
The CDC continues to encourage people to wear masks while on public transit.
The federal court’s decision comes less than a week after the CDC extended its mask rule for another 15 days to give the agency additional time to study the impact of the more contagious Omicron BA.2 subvariant.
The U.S. seven-day average of cases has increased 43 percent over the past two weeks, with COVID-19 hospitalizations increasing in 12 states and the District of Columbia.
Dr. Bruce Y. Lee, a professor at the CUNY Graduate School of Public Health & Health Policy, said it is concerning that the CDC’s mask policy was struck down by the court because there’s a need for public health measures like this.
“Currently, we’re in a situation where there have been upswings in COVID-19 cases in recent weeks, and the BA.2, as well as other more contagious variants, have been spreading,” he said.
Several airlines announced that they would be making masks optional on their aircraft for domestic and certain international flights (depending upon the destination country).
This includes Alaska Airlines, American Airlines, Delta Air Lines, Jet Blue, Southwest Airlines, and United Airlines.
It may take some time for this change to be communicated fully with airline employees, TSA employees, and travelers.
“You may experience inconsistent enforcement during the next 24 hours as this news is more broadly communicated,” said Delta in a statement on Tuesday.
“Remember to show understanding and patience with others who may not be aware enforcement is no longer required,” the airline said.
Not every public transit operator is ending the mask requirement.
New York City’s subway system will still require masks for passengers. But Washington, D.C.’s Metro has made them optional immediately.
In Philadelphia, a citywide indoor mask mandate was reinstated Monday, in response to rising coronavirus cases. But SEPTA, which operates trains, subways, and buses in the city, is no longer requiring masks on its vehicles or in its stations.
Given the patchwork mask rules across the country, travelers are advised to check with airlines, other operators, and their destination city or country before traveling.
Lawrence Gostin, JD, a professor of global health law at Georgetown University in Washington, D.C., said he is very worried about the impact of the court’s ruling on the CDC.
“Clearly, if the agency has a mandate for anything, that mandate must be to protect against the interstate or international spread of a highly dangerous virus,” he said.
This ruling has “handcuffed the CDC in its ability to end the COVID pandemic, and much more importantly, its ability to act flexibly, nimbly and decisively when the next health crisis hits — and it will hit,” he added.
Lee said the loss of the CDC mask order will add to the lack of coordination among states, cities, and municipalities that has hampered the country’s response throughout the pandemic.
“The virus does not respect or understand state and municipal boundaries,” he said. ”So you need an overall national coordination when it comes to an infectious disease threat like this.”
The CDC was set to end its mask order on May 3, so the Biden administration may choose to not challenge the court’s decision.
Gostin thinks that would be a mistake.
“I want them to appeal it,” he said, “because I don’t want to have this very dangerous and damaging precedent lingering over the heads of CDC directors in the future.”
Herschel Nachlis, PhD, a research assistant professor of government at Dartmouth College in Hanover, New Hampshire, thinks if the Biden administration appeals this ruling to the Supreme Court, there is a chance that that court will uphold the CDC’s mask mandate.
“During crises, courts generally defer to agencies and experts in the areas where Congress clearly gave them power,” he said.
“While two years into this pandemic, judicial deference to public health officials may be waning, future crises are likely to somewhat reset the clock,” he added.
An April poll by the Kaiser Family Foundation found Americans were divided on whether the federal government should extend the mask requirement for public transportation.
Last month, though, executives from 10 airlines called for the Biden administration to end the mask mandate and other pandemic-related travel policies.
“Since the airlines and many consumers are sick of it, as a political matter the Biden Administration may want the travel mask mandate to end,” said Nachlis.
“So maybe this judge is actually doing the Biden Administration a favor,” he added.
At the end of the day, the court’s ruling puts the onus on individuals to determine their own risk from the coronavirus while using public transportation, and take personal steps to protect themselves.
Many people have pushed for this as the country shifts to “living with the virus.”
What can get lost in this transition is the role that communities play in protecting those who are most vulnerable.
But Lee said their effectiveness as a public health — or community — tool depends on how many people are using them.
“The ideal situation is everyone wearing a mask when there’s high virus activity in the community,” he said, emphasizing that masks are not forever.
However, “when people make an individual decision [about wearing masks], it doesn’t necessarily just affect that person, it affects everyone around them,” he added.
The people most affected by the end of the CDC mask order are those who are immunocompromised or otherwise vulnerable — this includes people you may not realize are at risk.