On Monday, April 18, U.S. District Judge Kathryn Kimball Mizelle in Florida struck down the mask mandate required when traveling on public buses, public transit like cabs and ride-sharing, trains and aircraft.
This ends a federal mandate affecting most Americans and travelers across the country, except for certain states and jurisdictions where mask rules remain in effect based on the decisions from local leaders related to local health conditions.
The rule requiring masks on public transportation was set to expire this month anyway until the Centers for Disease Control and Prevention extended the rule mandating masks for travel until Tuesday, May 3.
Kimball Mizelle’s ruling was not based on any flashy culture war battle, nor some debate about mask efficacy or COVID-19’s lethality, but very rote and dull administrative law processes, whereby the means by which the CDC went about imposing and extending the mask mandate on travel was ruled illegal and invalid.
Kimball Mizelle wrote that the mask mandate exceeds the CDC’s authority under the Public Health Services Act, specifically that the sanitation authority granted to the CDC is limited to cleaning measures, not preventative behaviors of private persons and that sanitation is limited to property, not the bodies of human passengers.
In defending the mandate, the government invoked what’s known as the Chevron deference doctrine, which requires that courts defer to an executive agency’s interpretation of an ambiguous statute when the interpretation is “rational” or “reasonable.”
CDC lawyers claimed that Congress gave it broad latitude regarding “sanitation” and “other measures” to impede the spread of COVID-19, but Kimball Mizelle wrote that Congress cannot grant blanket decisions with “vast economic and political significance” to an administrative agency like that without explicit direction.
Kimball Mizelle determined that the governance of interstate travel based on adherence to CDC guidelines had already been invalidated by a 2004 court case in which Congress did not grant the CDC that explicit power, negating Chevron deference.
Kimball Mizelle also ruled that the mandate improperly invoked the good cause exception to notice and rulemaking and was not “harmless error,” which the court could ignore because an error was made in good faith.
The CDC also failed to explain its reasoning for the mandate and extension, Kimball Mizelle wrote, violating the Administrative Procedure Act.
It appears the Biden administration will not sue to keep the mask ruling in effect until May 3 and will let it expire, as the judge ruled it must.
United, American, Southwest, Delta, Alaska, JetBlue, Frontier, Allegiant, Hawaiian, Spirit, Sun Country, Avelo and Breeze airlines all issued statements almost immediately informing the public that masks were now optional for passengers and staff.
It’s not entirely surprising that air travel had a mask requirement long after most of the country had repealed it, considering most of air traffic safety is performative by nature.
The Transportation Security Administration, established as a unit of the U.S. Department of Homeland Security after the terrorist attacks of Sept. 11 2001, routinely fails to detect weapons and explosives in real-world tests, failing to catch these items about 70% of the time — which sounds terrifying, but is an improvement from an 80% failure rate a decade ago.
The TSA has failed to stop or prevent any major terrorist attack on civil aviation, which has been on an overall downward trend after 9/11 anyway.
It appears the TSA does more safety theatre than actual prevention. For instance, travelers are required to remove their shoes in response to the 2001 “shoe bomber,” Richard Reid, a British national who failed to set off a shoe bomb on a flight.
In 2006, the TSA started requiring all passengers to remove their shoes and spent hundreds of millions of dollars of screening equipment. But security experts raised doubts that Reid would have been caught even with these precautions in place as these machines can’t detect the explosive pentaerythritol tetranitrate, which requires a chemical test. Trained bomb-sniffing dogs, uniformed and plain clothes air marshals, and behavior experts are far less flashy and costly than explosive detection equipment, but giant machines make us “feel” safer, just as masks appear to do on airplane flights, with heavy-duty air filters and mostly vaccinated fellow passengers who spend most of their time seated staring forward or sleeping, not making out with every stranger on a plane.
In any event, travelers and Americans in general may continue wearing masks or their own beliefs and safety concerns, immunocompromised status or trepidation about catching an illness from a fellow traveler — flu, COVID-19 or otherwise — or even simply as a “do not talk to me” barrier which some of my triple-vaccinated friends say is their real reason for wearing a mask in public. The choice is now yours.
Christopher Fox Graham
Managing Editor
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