Biden appeal of judge’s mask mandate ruling risks backfiring

Legal experts who criticized a judge’s controversial decision this week striking down the federal mask mandate for travel say the Biden administration faces a grave risk if it moves forward with an appeal.

These court watchers warned that a conservative-leaning Supreme Court, which has already upended several pandemic-era health measures, could use the Trump-appointed judge’s narrow view of the government’s public health powers to create a far-reaching precedent.

“I think that this is fairly radical administrative law,” Michael Dorf, a professor at Cornell Law School, said of the district judge’s Monday ruling. “But it’s really radical administrative law for which there might be five votes in the Supreme Court.”

The administration was sent scrambling after Tampa-based U.S. District Judge Kathryn Kimball Mizelle, a Trump appointee, ruled that the federal mask mandate for travel on planes, trains and buses exceeded the authority of the Centers for Disease Control and Prevention (CDC).

It’s unclear if the administration will appeal the ruling. The Department of Justice on Tuesday said it would proceed with an appeal if the CDC determines the mask mandate remains a public health necessity.

White House press secretary Jen Psaki sought to downplay the political dimensions of the administration’s dilemma, saying Tuesday that a decision over whether to appeal the ruling would not be based on “political whims.” 

But outside pressures on the administration were hard to ignore.

Recent polling by the Associated Press-NORC Center for Public Affairs Research underscored how fragile Americans’ support for the mask mandate is, with only a slim majority (56 percent) in favor of requiring masks on public transit. A lawsuit challenging the measure was backed by 21 states, and the business community had lobbied for the administration to let the mandate expire this month.

As the Biden administration navigates these political crosscurrents, it now also faces a thorny legal calculation.

Legal experts who derided the Monday ruling as overly formalistic and divorced from the practical realities of a global pandemic say there’s good reason why the Biden administration should want to prevent a deeply flawed decision from remaining on the books.  

But the administration faces two key challenges: First, the appeals process could drag out beyond any practical time frame and, second, the administration could lose again — but in a higher stakes showdown.   

“There’s a risk that if you appeal, you turn what is a bad judgment on a policy you’re phasing out anyway, but that sets no precedent, into the law of the land that is now going to constrain you in other cases,” Dorf said.

On appeal, the case would first move to the Atlanta-based U.S. Court of Appeals for the 11th Circuit, a conservative-leaning court with seven Republican-appointed judges and four Democratic-appointed judges.

If the appeal continued, it would go before a 6-3 conservative majority Supreme Court that has already shot down the CDC’s pandemic-era pause on evictions as well as the administration’s vaccine-or-mask mandate for larger businesses.

Daniel Walters, a law professor at Penn State University, was sharply critical of the district judge’s Monday mask mandate ruling, arguing that it gave an unduly narrow reading of the CDC’s authority. Yet he was unsurprised by it, he said, given what he sees as a sort of trickle-down effect from the Supreme Court’s flawed ruling last August in the CDC eviction moratorium case.

“The problem here is that the Supreme Court is not stepping in to do quality control. There are a variety of reasons for that … but the biggest reason seems to be that a majority of the Supreme Court justices agree with the bottom line,” Walters said. “In other words, they might not get there the same way that the district court did, but they would still get there, so they’re not going to disturb even a highly problematic opinion.” 

The part of Mizelle’s ruling that drew the most intense fire was her interpretation of a 1944 federal law known as the Public Health Service Act. Her ruling, which largely turned on how she defined the word “sanitation” in the statute, was lampooned by critics as an almost farcical rendering of the textualist method of legal interpretation, due to the judge’s seeming detachment from the public health imperatives underlying Congress’s apparent aim.

“Some of the blame should be directed to the Supreme Court, which has itself played fast and loose with this statute in a much harder case involving the eviction moratorium,” Walters said. “That decision gave the green light to any district court to go ahead and gut the statute that Congress wrote.”

Leana Wen, a public health professor at George Washington University, said that what’s at stake in how the administration moves forward in the mask mandate case is its very authority over public health, which could be undercut if the administration were to lose on appeal.

“There may be a new variant or some other virus altogether that arises that may be a lot more lethal or contagious,” Wen said. “The CDC needs to maintain public health authority in order to respond to a new threat in the future.”