CDC asks Justice Department to appeal judge’s ruling that struck down mask mandate

By Bernard Turk On Apr 21, 2022

The Centers for Disease Control and Prevention has recommended that the Justice Department appeal a federal judge’s decision that struck down the mask mandate on public transportation, the agency announced.

“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 Wednesday evening. “CDC believes this is a lawful order, well within CDC’s legal authority to protect public health.”

U.S. District Judge Kathryn Kimball Mizelle of the Middle District of Florida on Monday concluded that the mandate exceeded CDC’s statutory authority, blindsiding the White House and sparking days of debate within the administration about whether to appeal the ruling.

The Justice Department on Tuesday had said that it would wait for CDC’s recommendation on whether to proceed with an appeal.

Public health officials have worried that the ruling poses a risk to the CDC’s authority, and outside experts had exhorted the Biden administration to act.

“If the courts handcuff the CDC in this most classic exercise of public health powers, it seems to me that CDC will not be able to act nimbly and decisively when the next health crisis hits. And it will hit,” said Lawrence O. Gostin, a Georgetown University professor of global health law, who advises the White House and urged them to appeal.

If the decision is allowed to stand, Gostin said, the CDC “will always be looking over its shoulder, always gun shy about exercising its powers.”

But an appeal could tee up a battle at the Supreme Court, which has already dealt several blows to the administration’s coronavirus policies and could issue a new ruling that further constrained CDC’s attempts to fight future virus surges.

Health experts had lamented Monday’s court ruling, saying it confused Americans about the need for masking and could increase the risk of virus spread.

Linsey Marr, a Virginia Tech professor who has studied the transmission of the virus, warned that she was particularly worried about the possibility of virus transmission aboard buses.

“Those can be even more packed — standing room only,” she said. “And in almost all cases, they do not have as good ventilation and filtration as airplanes.”

The Biden administration had repeatedly extended the mandate, most recently through May 3, saying that CDC experts needed time to investigate the implications of the fast-moving BA2 variant’s spread.

This is a developing story. It will be updated.

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