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Justice Department appeals ruling on mask mandate
Kellie Cowan reports
TAMPA, Fla. - Passengers have been riding and flying without a mask after a federal judge in Tampa struck down the Center for Disease Control and Prevention's mask mandate for public transportation on Monday. Two days later, the Department of Justice appealed the decision, leaving many to wonder if the mask order would come back.
Despite the appeal, masks remain optional unless a private company, transit authority or local government mandates that they be worn. Major domestic airlines have done away with their mask requirements, as have most rail, bus and ride-share companies.
Attorney Brant Hadaway was able to successfully upend the CDC's mask order on behalf of the Health Freedom Defense Fund by arguing the agency did not have the authority to mandate its guidance.
"The judge's ruling was that the administration and particularly the CDC, lacked authority under the Public Health Service Act of 1944 to do what they've done," explained Hadaway.
The White House and Department of Justice, however, disagree.
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"We feel strongly that this is the sound public health guidance that is well within the authority of the CDC," said White House COVID-19 response team advisor Dr. Cameron Webb.
The case is now in the hands of the appeals court and travelers are free to carry on masked or mask less.
"Unless the 11th Circuit Court of Appeals overturns this, the federal travel mask mandate is dead," said Leslie Manookian, president of Health Freedom Defense Fund.
At Tampa International Airport on Thursday, many passengers made their way to their gates unmasked, but some explained they planned to mask up on their flights.
"We are going to wear a mask when we’re on the flight. It’s too close quarters," said Terry Freshley. "We still feel comfortable wearing a mask because we have been traveling a lot and wearing them, and we haven’t gotten sick."
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The appeals process could drag on for months. In the meantime, the White House continues to recommend following CDC guidance.
"If I were to hop on a plane tomorrow, I personally would follow the CDC guidance on that," said Webb. "I would continue to wear masks because I know where that guidance is coming from. That authority to issue the best practices or the guidance for travel or for any kind of public health measure should come from our public health agencies, not from a district court judge in a single state."
That's the recommendation from many disease experts as well.
"From a public health standpoint, unfortunately, coronavirus still isn’t over. I can really see the threat to the community," said Dr. Jill Roberts, who teaches in the University of South Florida's College of Public Health. "The idea of taking these mandates away right now I feel like it’s too early."
Barring the Biden administration asking for an emergency stay, mask-optional will remain the status quo, unless a private business or governmental authority dictates otherwise.
"I think it's too late to ask for an emergency stay. That would have been something they should have done immediately," said Hadaway. "There was a great deal of dithering that went on with the DOJ saying they were waiting for CDC."
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Ultimately, the goal of the appeal could have more to do with avoiding a judicial precedent that strips the CDC of any type of authority to issue orders during a health emergency, and less about putting the recently struck down mask order back into place.
"The CDC wants to keep its authority as any agency does. They want their authority to be as broad as possible," said Hadaway.
Webb said he couldn't speak to the intent of the DOJ legal strategy, but said the appeal made it clear that their goal is to reinforce what they see as an appropriate use of the CDC's authority.
"I think the administration has been clear we're going to continue to stand up for CDC's ability to issue thoughtful and science-based public health guidance. Making sure that we drive home that point, that we preserve that future ability for [the CDC] to issue similar guidance," said Webb.
Roberts agrees that the CDC lacks regulatory authority, but hopes others don't conflate the court's ruling on the agency's powers with its ability to issue sound public health guidance. In the end, she said the judge's decision to strike down the CDC order could be a positive for the agency in the long run.
"Do I think it’s a good thing that we have separated the regulatory from the people giving the advice? I think that’s good because a lot of people can be scared off by regulations," explained Roberts. "The CDC can do some really great things and I think they do, but we have to be careful because if we turn a blind eye to them, we do so at our own risk."