Stopping the “Ding, Dong Party”: Will The Biden Administration Appeal the Mask Ruling?

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A curious thing happened this week after a federal judge struck down the Biden Administration’s mask mandate for airplanes and mass transportation: nothing. In such high-profile litigation, the Justice Department will often announce an emergency appeal to stay the order of the lower court pending an appellate review. Instead, the Administration said it was studying the opinion but that the mandate was no longer in effect.

When U.S. District Judge Kathryn Kimball Mizelle in Tampa ruled that the Centers for Disease Control and Prevention exceeded its authority to ordering masks for mass transportation, many of us expected an immediate announcement of an appeal. Instead, there were crickets from the CDC and cheers from passengers.

It was a telling moment. The hesitancy of the Administration at that moment may have had more to do with scenes on airlines of passengers celebrating the decision.  One pilot came out to tell the passengers: “Ladies and gentlemen, this is your pilot speaking. This is the most important announcement I’ve ever made. The federal mask mandate is over. Take off your mask if you choose.” Whole planes erupted in spontaneous celebrations at 40,000 feet.

The problem is that these scenes had the feeling of a “ding dong, the Witch is dead” party. It is far easier to ban than stop a party. The Administration will now fight to tell those same passengers to say that the witch is very much alive so re-mask.

The decision by Mizelle came at a time when airlines and experts are questioning the scientific or medical basis for the CDC rule. A group of 21 states last month sued to challenge the mask mandate.

Many in the public were also confused why they could go maskless at movie theaters, restaurants, sporting events, but not airlines or trains. Moreover, many have asked why the common surgical paper masks used on airplanes are required when even experts on networks like CNN call them “little more than facial decorations.” The CDC was enforcing the wearing of masks declared “useless” by experts.

Judge Mizelle accepted that masks can limit the transmission of Covid-19, but said that the question was the authority of the CDC to make such a decision unilaterally. The Court asked why the Administration did not want to allow the public to be heard on “a regulation that would constrain their choices and actions via threats of civil and criminal penalties.”

According to Mizelle, the answer from the CDC was basically “trust us we’re the government.” Mizelle noted that the Biden Administration did not offer anything of substance when pressed on why the public and transportation companies should not be heard in a “notice and comment” process. Instead, Mizelle said that the Administration shrugged off such requirements under the Administrative Procedure Act as “commonsense.”

The court insisted that the Constitution requires more than a shrug to prevent an agency like the CDC from becoming a government unto itself.

We have an Administration that insisted that public health demands the continued enforcement of the mask mandate, but now seems remarkably equivocal on the response to the rule. Last week, White House Press Secretary Jen Psaki chastised Fox’s Peter Doocy that he “is no doctor” when asked about the continuation of the mandate. However, she declined to say that the rule should continue to be enforced and said it was now “recommended” pending a decision on appeal.

What is most interesting about the conspicuous delay is that the CDC is afforded great deference in interpreting terms like “sanitation” under the regulations. However, the CDC has previously lost cases over national mandates or moratoriums. Last year, the CDC reissued a moratorium on evictions that some of us viewed as clearly unlawful. Yet, the CDC issued the order at the request of President Joe Biden (and the support of Harvard Professor Lawrence Tribe) only to have it struck down.

The Administration is going to have a hard time making this cat walks backwards. The cheering of passengers and pilots seemed as much as a communication to the Administration as it was a celebration.  A large number of airlines immediately declared the mandate to be dead and unenforceable. It is like throwing a retirement party for an employee before they have decided to go. It is a tad awkward to express doubts when someone is showing you the door.

That is why those cheering videos could have a greater impact on the White House than any CDC or DOJ recommendation. The Biden Administration could still appeal as it has in past such cases.  There will certainly be many DOJ lawyers asserting that they could win on appeal on the basis of agency deference. The question is who would tell the public. They may have to wait for the “ding, dong” parties to end.

Here is the opinion: mask-mandate-order

273 thoughts on “Stopping the “Ding, Dong Party”: Will The Biden Administration Appeal the Mask Ruling?”

  1. So according to the Biden administration, Title 42 restrictions on immigration should be dropped, because the pandemic is over.

    But mask mandates for airline passengers should not be dropped, because the pandemic is not over.

    I don’t think this is about the science.

  2. OT: More than 300,000 votes unverified in Georgia’s Fulton County in 2020, new complaint alleges
    President Joe Biden won the state by 11,779 votes over former President Donald Trump.

    “Fulton County’s Advance Voting poll closing tapes are a fraudulent, un-certified, unsigned, and un-checked false representation of over 311,000 ballots that no court could legally accept,”

  3. The first few words are instructive:

    CDC Statement on Masks in Public Transportation Settings:

    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.

    The bolded words show us what is at stake. Power. So good of them to put it in writing

  4. “It’s a Small World After All” or so that Disney song says.

    In a small world, don’t stick your finger in someone’s eye, or they might stick it right back to you.

    “Florida Senate approves bill revoking Disney’s special self-governing status”

    1. “Florida Senate approves . . .”

      It’s nice to see that some politicians still have a backbone.

  5. In this nation individual liberty is supposed to be in the national interest (and the government’s).

  6. Judge Mizelle refused to defer to the federal government’s interpretation of the statute under the Chevron doctrine, holding, not very persuasively, that the statute was not ambiguous.

    Even without that, the result would still have been the same, on the judge’s alternate, and very persuasive, grounds, that the government failed to observe the notice-and-comment requirement of the Administrative Procedure Act without good grounds.

    Nevertheless, even though higher courts can affirm Judge Mizelle’s judgment on the APA ground, I suspect the Supreme Court will use this case as its opportunity to strike down the Chevron precedent. Mask requirements are so unpopular, and scientifically indefensible, that this is a perfect opportunity. And many of the justices are known to oppose Chevron.

    This matter also illustrates the importance of notice and comment. Comments would have provided the opportunity for pointing out how there was no scientific support for requiring masks. And the government would have been obliged to respond to such comments.

    1. I believe the judge went on to argue that even if the statutory language was ambiguous, it would still fail to delegate the authority because it was not clear and specific under the major questions doctrine.

      1. The CDC has now asked the DOJ to appeal so we’ll see what appellate courts make of the judge’s reasoning.

        On a different point, there is speculation that Biden will reinstate Title 42, now set to terminate May 23. Since the CDC and surgeon general have concluded it is no longer warranted for health reasons, and since that is the only basis on which it can apply and the decision is the surgeon general’s, how exactly could this be done lawfully?

        1. It is interesting that the WH and left want to get rid of one Covid measure – Title 42 and preserve another.

          This is all politics.

          Title 42 is just a tool – the real issue is letting CBP do its job.

    2. Chevron is dead or dying – good ridance.

      Laws are passed by congress. The courts owe congress some deference on the meaning of the law.
      The executive has no more legititimate constitutional voice on the meaning of a law then the courts do – frankly less.

      The most fundimental reason for defering to the executive is to avoid politicizing the courts.

      But the principle that the interpretation of the law is the role of the courts is one of the earliest supreme court decisions.
      Marbury I beleive.

      This is not a perfect answer – it increase the politicization of the courts.
      But Chevron deference is worse.

      The most fundimental next thing that must be addressed is putting teeth into the rules for statutory interpretation.
      Judges that find the politically beneficial meaning rather than the plain meaning of a law need to be disciplined.

      1. Marbarry claims to be the final arbiter. But in reality, Congress has ceded the power. Congress has far more power. States, even more power. Kelo is a horrendous bit of constitutional law, but I think over 30 states passed laws protecting private property from emanate domain. Heller and Casey reafirm individual rights to keep and bear arms, but states and local govt continue to severely restrict gun possession.
        Our elected representatives in DC have willing ceded their power. Because it shifts responsibility away from them, and they never have to be judged on their votes.

        Thankfully States are coming to realize they have way more power than the feds, and are starting to flex that muscle.

        We no longer teach civics. Hence people don’t know all power starts and ends at the People.

        1. The final authority is ALWAYS the citizenry.

          Through the vote when that is trustworthy,
          Through force of arms when it is not.

          One of the things the War in Ukraine MIGHT highlight to left wing nuts – is that ultimately people will fight, kill, and die for liberty.

          J6 was not an insurrection – but if there is a next time, if we can not trust elections, if we continue to have our liberty abudsed by the institutions that are supposed to protect it,
          there will be violence.

          “That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it,”



        “Interpretation” is not necessary and interpretation is not constitutional.

        You do realize that you just nullified the Constitution, amended the Constitution, and confiscated the legislative power from the legislative branch and gave it to the judicial branch by employing the word “interpretation.”

        Please cite the Constitution wherein the judicial branch is provided any power to amend the Constitution, legislate, modify legislation, or legislate by “interpretation.”

        The echoes of verbal meanderings in the ethereal realm of “interpretation” related to the Constitution do not constitute the literal, verbatim, English words of the “manifest tenor” of the United States Constitution.

        “Interpretation” is corruption, and an invitation to corrupt.

        The Constitution holds dominion and that dominion cannot be modified by “interpretation” by the judicial branch.

        You have no power to imagine and deliver power to the judicial branch that it is distinctly not provided by the Constitution.

        The sole charge of the judicial branch is to assure that actions comport with statutory and fundamental law.

        The judicial branch has no power to modify any statutory or fundamental law in any of its findings or decisions.

        The judicial branch is not the legislative branch, and the judicial branch is not an ancillary legislative branch.


    3. I would note that if the statute was ambiguous as you claim then it is void for vagueness.

      Congress is obligated to create clear laws.
      The law making power in the US belongs to congress – not the executive, and not the courts.

      The courts are their to protect individual rights from government overreach and to kill unconstitutional or vague laws.

      Congress can rewrite new laws. The country did fine before each and every law that has ever been passed,
      Striking one is never the end of the world.

      But infringing on liberty with vauge statues is.

      So what is it Lysias – if the statute is as you say – unclear – then it is unconstitutionally vague.

  7. Understanding that the Constitution provides rights and freedoms to individuals and severely limits and restricts government, someone please cite the Constitution wherein government is provided any power to compel individuals to cover their faces with masks, and wherein the freedom of clothing or appurtenance (9th Amendment) is denied to individuals.

    Please cite the Constitution wherein any rendition of “emergency powers” is delegated to Congress or reserved to the States, or to the people, other than Article 1, Section 9, which allows for the suspension of habeas corpus in a condition of rebellion or invasion.

  8. “Accepted that masks can limit transmission?” Accepted this on what basis? Because the CDC’s Mengele Brigade said so? It’s irrelevant anyway, and not because CDC failed to allow public comment? Public comment is a pointless, perfunctory exercise, the summarized collective viewpoint of which can be wholly dumped in the trash by the tyrannical federal regulator 30 days later! What’s relevant is that mask orders violate American’s inalienable natural rights to speech, assembly, and the fundamental right to pursue happiness. These rights supersede the Constitution, not to mention silly legislation, executive orders, or Deep State fatwas. “Oh, but air transportation is a privilege, not a right.” All you docile sheep with your 9-digit eartags better start rethinking that maxim! Who is to serve whom!

    1. I’m not sure Turley is right that the Judge found that masks can limit transmission. I did not see that finding in the opinion, and it was not necessary for her to address herself to that one way or the other for purposes of her analysis.

    2. @Tom SteChatte

      P100 respirators can limit transmission.
      N95 masks too. Provided, you’re wearing them properly, and you dispose them after use. (They are disposable.)

      Other than that… when you consider that its not vapor(droplets) but aerosol … no the masks do nothing.

      This is why those who are not sheeple will not vote for a Democrat unless the GOP candidate is worse.

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