DOJ to appeal mask ruling after CDC request

The Department of Justice (DOJ) on Wednesday said it would appeal a ruling striking down the mask mandate for public transportation after the Centers for Disease Control and Prevention (CDC) requested it appeal.

“In light of today’s assessment by @CDCgov that an order requiring masking in the transportation corridor remains necessary to protect the public health, the Department has filed a notice of appeal,” a DOJ spokesman tweeted.

The CDC said in a Wednesday statement that “to protect CDC’s public health authority beyond the ongoing assessment announced last week, CDC has asked DOJ to proceed with an appeal in Health Freedom Defense Fund, Inc., et al., v. Biden, et al.”

“It is CDC’s continuing assessment that at this time an order requiring masking in the indoor transportation corridor remains necessary for the public health,” the agency added.

The announcement helps bring more certainty to the administration’s course of action after officials deliberated over whether to appeal the ruling, which was issued Monday.

The CDC order requiring masks for travelers had been set to last until May 3, when many experts expected it to expire anyway. 

While the mask mandate will remain suspended for the time being, and likely was going to expire soon anyway, a major reason public health experts had pushed for an appeal is to preserve the CDC’s legal authority for the future. 

If the current ruling from a federal judge in Florida was not appealed and allowed to stand, they feared it would handcuff the CDC if it needed to reimpose the mandate in response to a more dangerous variant down the line. 

The move is politically fraught, though, and is sure to draw rebukes from Republicans. Polls have shown the public is split on whether to continue the transportation mask mandates. 

The administration is now in the position of having to carry out a legal fight to maintain masking powers for the future, even though officials are seeking to project more of a sense of normalcy and Democratic governors across the country previously lifted mask mandates in other settings. 

“CDC will continue to monitor public health conditions to determine whether such an order remains necessary,” the agency said. “CDC believes this is a lawful order, well within CDC’s legal authority to protect public health.”

Some legal experts had criticized the ruling from the Florida judge, an appointee of former President Trump, as a strained reading of law that went too far in limiting the CDC’s basic powers. 

But with a conservative majority on the Supreme Court and on the relevant court of appeals, there is also a risk that a higher court will put its stamp of approval on the ruling, which would go even further to constrain the CDC. 

Meanwhile, any attempt in the future to reimpose the mandate is sure to encounter resistance from the portion of passengers who celebrated being able to travel mask free. On the other side, some immunocompromised or other vulnerable people became more concerned after the mask mandate was lifted. Public health experts have been split on whether it was still necessary. 

This story was updated at 6:35 p.m.