WASHINGTON – The Biden administration on Wednesday appealed the federal court’s decision to remove the requirement for masks for passengers on planes, trains, buses and other public transport after the Centers for Disease Control and Prevention concluded that the mandate was “necessary”. to protect the public from the spread of the coronavirus.
The decision came two days after a federal judge in Florida revoked the mask mask and sparked a rush among airlines, some public transportation systems and even Uber and Lyft to drop mask requirements. Some pilots announced a sharp change in the middle of the flight, which caused celebration – but also concern – among virus-weary passengers.
Although the CDC wants to keep the mandate intact, it also insists on retaining its public health powers. But this is potentially risky; if the decision to revoke the mandate is upheld, this could permanently weaken the agency’s credibility.
Even if the Biden administration wins the case, there will be a backlash from Americans who felt relieved by the abolition of the mask requirement, which also applied to transportation hubs such as airports, seaports and stations.
The move does not change the status of the mask mandate, which cannot be reinstated unless the administration wins a postponement of the Federal District Court order, and there have been few immediate signs that airlines will reintroduce their own. Legal experts said the administration was likely to request a postponement and that if it did, the court could decide whether to allow it within days.
The Justice Department’s move comes as cases, though not hospitalizations and deaths, increase in most states, as sub-option BA.2 threatens to unleash a new deadly wave.
The term was in effect shortly after President Biden took office in January 2021 and was due to expire on 18 April. But despite pressure from airlines, the hotel industry and Republican lawmakers to repeal the rule, the CDC has extended it until May 3 to give more time to public health experts to consider whether it should continue.
The U.S. District Court of Appeal for the 11th District, which will hear the case, has conservative leanings, and the case may end up before the Supreme Court, which is also dominated by conservatives.
“This creates a clash between public health and the conservative judiciary, and what is based on that is the future ability of our country’s public health agencies to protect the American public,” said Lawrence O. Gostin, a public health expert at Georgetown University. “The risk is that you will get a conservative 11th District solution that will limit the CDC’s powers to fight Covid and future pandemics so much that it will make all Americans less safe and secure.
Jen Psaki, a White House spokeswoman, said in an interview with CNN +’s Wallace on Wednesday that the call was important not only to maintain the mask requirement, but also “to ensure the CDC’s authority and ability to impose mandates in future. intact. ”
But Tori Emerson Barnes, an employee of the American Tourism Association, a trade group, said the mandate had outlived its usefulness.
“With low levels of hospitalization and the many effective health tools now widely available, from boosters to therapies to high-quality airborne ventilation, the necessary public transport camouflage is simply out of step with the current public health landscape,” he said. she in a statement. .
In a 59-page ruling she issued Monday, Judge Catherine Kimball Misel, who was appointed by President Donald J. Trump revoked the transportation mandate on several grounds, including that the agency exceeded its legal powers under the Public Health Act of 1944.
On Tuesday, after a day of discussion in the White House, the Ministry of Justice announced that it intends to appeal the decision – but only if the CDC decides that the mandate is still needed. The CDC clarified its position on Wednesday night.
“The CDC believes this is a legal order that is within the CDC’s legal authority to protect public health,” the agency said in a statement, adding that it “continues to recommend that people wear masks in all public places.” indoor transport ‘.
The statement added: “When people wear a tight-fitting mask or respirator over their nose and mouth when traveling indoors or on public transport, they protect themselves and those around them, including those who are immunocompromised or still do not respond to vaccine conditions, and help keep travel and public transport safer for all. ”
In mid-April, after the CDC announced it was extending its term until May 3, Dr. Ashish K. Jha, the new Covid Response Coordinator at the White House, said in an interview that the extra time would allow the CDC to assess whether BA .2, a sub-variant of the coronavirus, will become a “pulsation or wave” in the United States. Experts said Wednesday that the issue remains unresolved.
The CDC actually has very limited regulatory powers; in general, state and local authorities have the power to impose restrictions on public health. But legal experts agree that interstate transport is a notable exception. In interviews, several said Judge Misel had misread the law.
When it passed the Public Health Act of 1944, Congress authorized the CDC to develop and implement provisions that it deemed necessary “to prevent the introduction, transmission, or spread of communicable diseases.”
The law also suggests some steps the CDC can take to prevent the spread of disease, including sanitation, disinfection and pest control.
Judge Misel interpreted these proposals as the CDC’s only options, a narrow interpretation that “fundamentally misunderstands the scope of the CDC’s powers,” said James Hodge, director of the Center for Public Health Law and Policy at the University of Arizona. She also made the mistake of likening the mandate to quarantine masks, he said.
The judge also accused the CDC of not asking for public comment on the mask order, a statement that Professor Gostin said was “common sense”. While administrative law requires public comment on most federal action, it also allows exceptions for a “good cause.”
But while Mr Gostin said the CDC would have an “extremely good case” on appeal, he said an alternative would be for the agency to allow the current term to expire and then try to reinstate it at a later date if cases arise – and defend the new order in court at that time, if necessary.
Some public health experts have challenged the extension of the transport mask’s mandate so as not to challenge Judge Misel’s decision and potentially lead to a higher court that permanently limits the CDC’s powers.
“From pure public health, I would say, let it go, it’s not worth the fight,” said Dr. Carlos del Rio, an infectious disease specialist at Emory University in Atlanta.
At the same time, it may be difficult for the White House and CDC Director Dr. Rochelle P. Valenski to rationalize the decision to appeal the judge’s decision, given that they are increasingly wearing masks as a matter of personal choice. On Tuesday, Mr Biden himself was unobtrusive when asked if people should wear masks on planes, saying the decision to do so was “by themselves”.
Just two months ago, the CDC changed its guidelines in a way that made it much less likely that a county would be considered high-risk. Only in high-risk areas does the agency already recommend wearing a mask indoors for everyone. It says those who are immune-deficient or otherwise at high risk for serious illness should talk to their healthcare providers about wearing a mask in moderate-risk areas.
Under the new regulations, the CDC said counties must decide the level of risk for their residence based on the number of new Covid-related hospital admissions in the past week, the percentage of hospital beds occupied by Covid-19 patients, and the percentage of new hospitals. cases in the last week.
“We want to give people a break from things like wearing masks when those figures are better,” Dr. Valenski said at the time. “And then have the ability to reach out to them again if things get worse.”
Public health experts say it is up to Dr. Valenski to maintain his agency’s ability to promote or even require the wearing of masks in the face of any future deadly waves of the virus.
“The CDC must not allow the drama of this court opinion to change what it would do,” said Dr. Celine Gonder, an infectious disease specialist and editor-in-chief of public health at Kaiser Health News. “The important thing is that she will probably face a new leap from hospitalizations in the future, another dangerous option, and she absolutely has to keep this tool in her pocket – the masking tool.
Sharon LaFranier and Niraj Chokshi contributed to the report.
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