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Department of Justice files mask mandate appeal – here's what it means for travelers

June 01, 2022
5 min read
Flight attendant showing the emergency exit in an airplane wearing a facemask
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On May 31, the U.S. Department of Justice filed a formal appeal and brief with the 11th Circuit Court to overturn last month's decision by a district court judge voiding the Centers for Disease Control and Prevention mask mandate on airlines and other public transportation. In the brief filed for the appeal, the Justice Department said, contrary to the district court's ruling, that the ability to institute a mask mandate "falls easily within the CDC's statutory authority."

While this highly charged debate about mask-wearing, and the government's authority to mandate it, continues to rage in public and in the court system, there are several important reasons why this particular court case will likely have little impact on your travel situation in the near future.

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Justice Department appeal based on statutory authority

On Tuesday, the Department of Justice filed a 48-page brief in support of its appeal to the 11th Circuit Court based in Atlanta. In the brief, the DOJ argued the CDC had the "statutory authority" to create and implement disease-controlling measures like a mask mandate. This authority has been long established, according to the DOJ, under U.S. legal code titles 8 and 42 (Public Health and Welfare), and the Public Health Service Act of 1944 to give the CDC authority to "prevent the introduction, transmission and spread of communicable diseases."

Among the areas where the DOJ cites CDC authority to introduce a mask mandate is under the "sanitation" measures contained in Section 264(a) of the code. The original federal mask mandate from February 2021, in Executive Order 13998, used this legal basis to introduce the rule. The crux of the debate in the April 2022 court case was whether mask-wearing can be considered an area of "sanitation" in transportation and interstate commerce, and thus covered under the authority of the CDC.

Related: The European countries still requiring masks on flights despite the EU dropping rules

The ruling for the removal of the mask mandate

On April 18, U.S. District Court Judge Kathryn Kimball Mizelle struck down the federal mask requirement for airlines and other modes of transport, saying "the mask mandate exceeds the CDC's statutory authority and violates the procedures required for agency rulemaking." Airlines immediately stopped their requirements for mask-wearing (some of them midflight) to both the celebration and consternation of travelers.

Mizelle, a Trump-appointed judge, faced controversy in her Senate approval hearing as the American Bar Association testified she was not qualified for the federal court position because she did "not meet the requisite minimum standard of experience necessary to perform the responsibilities required by the high office of a federal trial judge," having never "tried a case, civil or criminal as lead or co-counsel." However, she had clerked for Supreme Court Justice Clarence Thomas and was a member of the Federalist Society and a devotee of conservative causes.

At the time of Mizelle's ruling, White House press secretary Jen Psaki said, "Public health decisions shouldn't be made by the courts. They should be made by public health experts." The U.S. Department of Justice released a statement following the ruling: "The Department of Justice and the Centers for Disease Control disagree with the district court’s decision and will appeal, subject to CDC’s conclusion that the order remains necessary for public health. The Department continues to believe that the order requiring masking in the transportation corridor is a valid exercise of the authority Congress has given the CDC to protect public health. That is an important authority the Department will continue to work to preserve."

Despite their protests against the ruling, the Department of Justice did not take any immediate steps to block it, and the Transportation Security Administration and airlines promptly stopped enforcing any mask-wearing.

Related: CDC asks Justice Department to appeal mask ruling

Why the appeal likely won't matter to you for now

Notably, as part of its appeal, the Justice Department has not filed for any type of emergency stay order against the decision which might put the previous ruling on hold and reintroduce a mask mandate. Even if the Justice Department wins its appeal, the decision likely will have little to no immediate impact on airline passengers. First, should the appeal be granted, the decision would likely be appealed again to the Supreme Court. The likelihood of circuit-level approval is probably low, given that the court is currently stacked with six Trump-appointed judges (out of the 11 judges currently serving).

However, if the appeal is granted and not overturned on further appeal, legal experts consider the Justice Department effort more of a positioning for the future legal authority to implement public health measures, rather than an immediate attempt to bring back the mask mandate for air travelers. In its statement, the DOJ emphasized it is the "authority" they will "continue to work to preserve," rather than mask mandates per se.

So don't expect TSA or the airlines to reinstate any sort of mask mandate in the near future, unless the COVID-19 situation radically changes for the worse. However, do expect the CDC and the DOJ to continue to campaign for the authority to introduce public health measures.

Related: How to navigate the recently dropped mask mandate while traveling

Featured image by Portrait of a flight attendant showing the emergency exit in an airplane wearing a facemask before takeoff - traveling during the pandemic concepts (Photo by Hispanolistic / Getty Images)
Editorial disclaimer: Opinions expressed here are the author’s alone, not those of any bank, credit card issuer, airline or hotel chain, and have not been reviewed, approved or otherwise endorsed by any of these entities.

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