Breaking: Justice Department appeals mask mandate ruling after CDC says mandate must continue

Editor’s note: This story has been updated with new information.

The Centers for Disease Control and Prevention on Wednesday said it is asking the Department of Justice to appeal a Florida federal judge’s order voiding the federal government’s mask mandate. Minutes after the CDC's announcement, the Justice Department announced it had filed the appeal.

The Justice Department had previously said that it would move forward with an appeal, but only if the CDC had deemed the mask mandate necessary. The public health agency has now said it does, in order to preserve its regulatory authority.

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

The CDC's statement came hours after White House press secretary Jen Psaki hinted that an appeal was coming.

"The CDC ... called for this extension because they wanted to look at more data, so I think we can all expect they're going to continue to want it," Psaki said at the daily White House briefing. "The Department of Justice is just waiting for that kind of final comment to take action in appealing ... they said they would appeal."

What this means now for travelers is unclear — though the mandate remains suspended by the Biden administration, as it has since Monday.

Several airlines said Monday they would lift their own requirements for passengers, meaning masks are now optional on most U.S. airlines.

President Joe Biden himself commented on the ruling for the first time Tuesday, saying in New Hampshire that Americans now have a choice about wearing a mask on transportation.

“It’s up to them,” Biden told reporters when asked if Americans should be wearing masks.

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The White House announced its change in course Monday afternoon.

“The agencies are reviewing the decision and assessing potential next steps. In the meantime, today’s court decision means CDC’s public transportation masking order is not in effect at this time,” a Biden administration official told TPG. “Therefore, TSA will not enforce its Security Directives and Emergency Amendment requiring mask use on public transportation and transportation hubs at this time. CDC recommends that people continue to wear masks in indoor public transportation settings.”

When asked about the predeparture testing requirement, the official said they have no plans to remove that requirement at this time. It’s the only other COVID-19 mandate still in effect at this time, requiring all passengers age 2 and older traveling to the U.S. to present results of a negative COVID-19 test taken within a day of entry to the country.

The news from the White House comes after judge Kathryn Kimball Mizelle, an appointee of former President Donald Trump, vetoed the enforcement of the mandate in her state after the government extended it to May 3, saying “a limited remedy would be no remedy at all.”

“The mandate exceeded the CDC’s statutory authority, improperly invoked the good cause exception to notice and comment rulemaking, and failed to adequately explain its decisions,” wrote Mizelle.

We now know the Department of Justice will appeal the ruling to the Atlanta-based 11th Circuit Court of Appeals, but for now, the federal government appears to be throwing in the towel on the mask mandate. United Airlines, Alaska Airlines, Delta Air Lines, American Airlines and Southwest Airlines all announced they would drop their mask requirements.

“Effective immediately, masks are no longer required at United on domestic flights, select international flights (dependent upon the arrival country’s mask requirements) or at U.S. airports,” United Airlines wrote via email. “While this means that our employees are no longer required to wear a mask – and no longer have to enforce a mask requirement for most of the flying public – they will be able to wear masks if they choose to do so, as the CDC continues to strongly recommend wearing a mask on public transit. We will continue to closely monitor the situation in the event of changes.”

Similarly, Alaska Airlines also announced that face masks would now be optional on planes and in airports.

“But, as of today, masks are optional in airports and onboard aircraft, effective immediately,” the airline said in a statement. “While we are glad this means many of us get to see your smiling faces, we understand some might have mixed feelings. Please remember to be kind to one another and that wearing a mask while traveling is still an option.”

Late Monday evening, Delta Air Lines also said masks would be optional.

“We are relieved to see the U.S. mask mandate lift to facilitate global travel as COVID-19 has transitioned to an ordinary seasonal virus. Thank you for your support in complying with the federal mask mandate and keeping each other, and our customers, safe during the pandemic.”

Masks will also no longer be required on American Airlines.

“In accordance with the Transportation Security Administration no longer enforcing the federal face mask mandate, face masks will no longer be required for our customers and team members at U.S. airports and on domestic flights,” the Fort Worth, Texas-based airline said in a statement.

Like other airlines, Southwest used the occasion to tout the air filtration system on its fleet of Boeing 737s.

“As a result of this development, effectively immediately, Southwest Employees and Customers will be able to choose whether they would like to wear a mask, and we encourage individuals to make the best decision to support their personal wellbeing,” the Dallas-based airline said in a statement. “Additionally, Southwest will continue supporting the comfort of those who travel with us by offering additional layers of protection, including sophisticated cabin air ventilation systems onboard our aircraft which incorporate HEPA air filtration that removes at least 99.97% of airborne particles.”

Airlines for America, the industry’s lobbying arm, also chimed in, saying it was “encouraged by the lifting of the federal transportation mask mandate” and that the group “look[s] forward to welcoming millions of travelers back to the skies this summer to reunite with loved ones, attend conferences or to take a vacation.”

Before the White House statement later Monday, most passengers were continuing to wear masks, though some had masks pulled down or had completely taken them off at LaGuardia Airport’s (LGA) Terminal B on Monday afternoon.

After the announcement, on a United Express flight between LaGuardia and Houston’s George Bush Intercontinental Airport (IAH), passengers continued to wear masks, and flight attendants continued to make public-address announcements about it.

Airlines had repeatedly urged the government to end the mandate, which was widely expected to end last week.

The decision in Florida was applauded by the state’s Republican governor, Ron DeSantis, who has been vocal about the mask mandate throughout the pandemic.

According to the Associated Press, the lawsuit was first brought in July last year by two plaintiffs and the Health Freedom Defense Fund.

Additional reporting by Caroline Tanner and David Slotnick.

Featured photo of travelers at the departures concourse of Miami International Airport (MIA) on April 18, 2022, by Saul Martinez/Bloomberg/Getty Images.