A federal judge’s rejection of the Biden mask mandate for public transportation – immediately unsettling life for Americans in the air and on the ground – reflects views that already have emerged on today’s Supreme Court.
Conservative justices have been ruling against Covid-19 measures since the start of the pandemic, including in January as the majority invalidated a vaccine requirement for large companies and, last summer, when it struck down a moratorium on evictions.
No high court rulings have involved a federal mask requirement, as Monday’s case did, but they have echoed similar distrust for governmental responses to the pandemic.
“The Covid crisis has served as a sort of constitutional stress test and in doing so, it has highlighted disturbing trends that were already present before the virus struck,” Justice Samuel Alito said in a November 2020 Federalist Society speech. His assertion captured sentiment continually expressed in his opinions and those by fellow conservatives.
The Supreme Court’s vaccine and eviction-related decisions were cited throughout Florida US District Court Judge Kathryn Kimball Mizelle’s decision that the US Centers for Disease Control and Prevention exceeded statutory authority and violated procedures for new agency regulations when it first imposed the mask mandate last year.
The high court has demonstrated skepticism for an array of anti-Covid restrictions, even beyond federal agency requirements. In 2020, it spurned time extensions for mail-in ballots during the presidential election season and lifted capacity requirements at churches and synagogues.
The justices sounded impatient with restrictions at the outset. Justice Neil Gorsuch wrote in a 2020 election case from Wisconsin, as he concurred in the rejection of a new absentee-ballot deadline, “Why did the district court seek to scuttle such long-settled tradition in this area? COVID. Because of the current pandemic, the court suggested, it was free to substitute its own election deadline for the State’s.”
Conservative justices similarly derided the Occupational Safety and Health Administration (OSHA) vaccine requirement for intruding on daily life and liberties.
Throughout her 59-page opinion, Mizelle, a former law clerk to Justice Clarence Thomas, the longest-serving member of the current high court, and its most conservative, echoed the skepticism from the high court’s right wing for government’s assertions of pandemic urgency.
“Our system does not permit agencies to act unlawfully even in pursuit of desirable ends,” Mizelle wrote, quoting the high court’s ruling against the federal eviction moratorium.
She cited recent high court precedent as she found that the CDC overstepped its statutory authority and failed to abide by the Administrative Procedure Act, which requires public notice and time for comment before new rules take effect.
Will the administration appeal?
This Supreme Court majority is readier to reject federal regulations across the board than predecessor courts. That pattern, and the sheer politics of mask mandates today, could influence whether the Biden administration decides to appeal, even as it believes it has a solid justification for the pandemic measure.
The Department of Justice was still studying the decision on Tuesday and had not yet revealed its next move. The rule was to remain in place only through May 3, and the initial public responses suggest many people were ready to shed their masks. Most major airlines immediately said masks would be optional on their flights.
Andy Slavitt, an acting chief of Medicare and Medicaid in the Obama administration and a former senior adviser to President Joe Biden on Covid-19, told CNN’s Kaitlan Collins the court ruling presented a dilemma.
“It’s a tricky question because on the one hand, you want to appeal a bad ruling. On the other hand, if they appeal and lose, they put themselves in a position where – let’s say, in the winter or the late fall we have a really bad wave – they could put themselves in a position where they’re not able to require masks at a point where they really need it.”
Slavitt noted that if Mizelle’s reasoning were adopted up a chain of appeals the administration might lose the opportunity “to put a mandate back under more trying circumstances.”
The Supreme Court has on a few occasions permitted Covid-19 regulations to stand, as in January when a six-justice majority upheld a vaccine mandate specifically imposed on workers at hospitals and other places that receive Medicare and Medicaid funding.
Mizelle contrasted that Centers for Medicare and Medicaid Services (CMS) vaccine rule to the disputed CDC mask mandate, saying CMS “provided almost four pages of reasoning (with forty footnotes of supporting sources) on why there was good cause to forego notice and comment,” compared to the “terse” explanation accompanying the mask mandate.
She noted that the high court had found that the extensive CMS reasons justified a “good cause” exception to the notice-and-comment dictate.
Exasperation with Covid rules
In the original order that took effect on February 1, 2021, the CDC stressed that “traveling on multi-person conveyances increases a person’s risk of getting and spreading COVID-19.” It said masking would help stop the pandemic and build public confidence in travel and the re-opening of America’s economy.
Last week when Biden officials extended the mandate originally imposed in February 2021, they said it was needed because of the distinct risks of travel, in closed settings for prolonged periods, and because of rising Covid-19 cases.
Mizelle’s decision Monday focused on the original order.
“At the time when the CDC issued the Mandate, the COVID-19 pandemic had been ongoing for almost a year and COVID-19 cases were decreasing,” she wrote. “This timing undercut the CDC’s suggestion that its action was so urgent that a thirty-day comment period was contrary to the public interest. … The history suggests that the CDC itself did not find the passage of time particularly serious.”
Her decision recalled sentiment voiced by justices in prior cases, including an opinion of Gorsuch, Thomas and Alito as they explained why they found last January that OSHA had exceeded its statutory authority when it imposed vaccine requirement on large employers.
“Approximately two years have passed since this pandemic began; vaccines have been available for more than a year,” Gorsuch wrote in a concurring opinion joined by Thomas and Alito. “Over that span, Congress has adopted several major pieces of legislation aimed at combatting COVID-19.
“The question before us,” they asserted, “is not how to respond to the pandemic, but who holds the power to do so. The answer is clear: Under the law as it stands today, that power rests with the States and Congress.”