POST 247. April 23, 2020. CORONAVIRUS. “The DOJ lawyers tasked with defending the CDC’s mask mandate authority have warned Biden administration officials that continuing to push the legal fight over the mask mandate could backfire, if the conservative-leaning appeals court upholds the order.”….”A Supreme Court ruling upholding the decision to strike down the mask mandate would make the Florida judge’s conclusions about CDC authority binding nationwide.”
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“The Centers for Disease Control and Prevention has determined that its order requiring masking on planes and other public transit is still needed, setting in motion a Justice Department appeal of a federal court decision that overturned the mandate.
“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 Wednesday statement. “CDC will continue to monitor public health conditions to determine whether such an order remains necessary. CDC believes this is a lawful order, well within CDC’s legal authority to protect public health.”
Following the CDC statement, Justice immediately filed a notice of appeal…
The Justice Department said Tuesday it planned to appeal a Florida federal judge’s ruling that voided the federal mask mandate for travelers if the CDC believes masking remains necessary.
The White House faced a dilemma as it weighed an appeal. If the appeal succeeds and passengers are forced to wear masks on planes again, the president could face political blowback.
But White House press secretary Jen Psaki said an appeal is needed not just to preserve the 15-day extension of the mandate but to preserve “CDC authority over the long-term” in case the pandemic worsens again. “Because as we’ve noted from here, we expect there to be ups and downs of the pandemic. And we certainly want the CDC to continue to have this authority.”
Even though the federal government said earlier this week that it is is no longer enforcing the mask mandate, the White House is recommending passengers wear masks.
U.S. District Court Judge Kathryn Kimball Mizelle said the CDC failed to justify the order and didn’t follow proper rulemaking procedures.
As a result, the CDC said Monday that it would no longer enforce its order requiring masks on mass transportation systems, though it continued to recommend masks in “indoor public transportation settings at this time.”..
The federal mask mandate was announced in January 2021. Before the judge’s decision, the mandate was set to last through at least May 3. It required face coverings on airplanes, trains, buses and public transportation hubs.” (A)
“The Justice Department’s appellate filings didn’t immediately include a request for a stay seeking to put the court order on hold and reinstate the mask mandate, a standard move in emergency circumstances.
That’s an indication that the legal effort is less about the current Covid-19 conditions and more about trying to preserve the CDC’s authority in the future…
The appeal is a risky move that could limit the government’s ability to make similar mandates in the future. If the 11th US Circuit Court of Appeals — which oversees appellate challenges from Florida, where the federal judge who struck down the mandate sits — upholds the ruling striking down the mandate, it would be precedent for all the other federal courts in that circuit, which covers the Southeast.
The DOJ lawyers tasked with defending the CDC’s mask mandate authority have warned Biden administration officials that continuing to push the legal fight over the mask mandate could backfire, if the conservative-leaning appeals court upholds the order.
The case could then be appealed to the Supreme Court, where conservative justices have been ruling against Covid-19 measures since the start of the pandemic. In January, the high court invalidated a vaccine requirement for large companies, and last summer it struck down a moratorium on evictions. A Supreme Court ruling upholding the decision to strike down the mask mandate would make the Florida judge’s conclusions about CDC authority binding nationwide…
Pressed on why the Justice Department didn’t immediately appeal the ruling or seeking an emergency stay, Psaki pointed to the CDC’s need to gather more data on the BA.2 subvariant of Covid-19, the original reason for the extension of the mandate last week.” (B)
“Why did the judge strike down the mandate?
Mizelle, who was appointed by former President Donald Trump, had two main reasons for invalidating the regulation, which was rolled out by the CDC in early 2021. She said that the agency exceeded the authority given to it by Congress, and that — in how it rolled out the mandate — that it violated an administrative law that dictates the process executive branch agencies must go through in policy-making.
On the latter point, Mizelle’s ruling was one of several rulings where the administrative law, the Administrative Procedure Act, has been used to block executive branch policies of administrations of both parties. Biden initiatives on immigration have also been struck down for violating the APA, as have Trump era immigration policies. The law was also cited in striking down Trump-era changes to the 2020 Census, for instance.
Mizelle said that the mask mandate violated the APA because the administration didn’t have an adequate excuse for forgoing public notice and comment on the rule, and because the CDC did not offer enough of an explanation for why it was implementing the requirement.
Her ruling on the CDC’s statutory authority dug into the meaning of the word “sanitation” in the relevant section of the 1944 law giving the executive branch the authority to issue regulations that address communicable diseases.
She said that the use of “sanitation” in the statute referred to regulations around “measures that clean something, not ones that keep something clean,” and thus, Mizelle concluded, the mask requirement was outside of what the law contemplated.
She said that the mask requirement — in how it applies to individual travelers and their ability to use transportation — was more akin to the “detention” and “quarantine” type regulations referenced in a separate section of the law. But because the mandate applied to all travelers — and not just those who had been determined infected upon examination, as spelled out in that part of the law — it stretched beyond that part of the statute as well.
The judge said that her ruling invalidated the mandate would be effective nationwide, and on all the different types of travel the administration applied it to. Even as she expressed skepticism of nationwide injunctions generally, she said in this case it would be difficult distinguishing the individual plaintiffs from the millions of other travelers.
“How is the ride-sharing driver, flight attendant, or bus driver to know someone is a Plaintiff to this lawsuit with permission to enter mask-free?” she asked, before concluding that completely wiping out the policy was “necessary to remedy” the legal harm being inflicted on the plaintiffs.” (C)
“Mizelle begins her analysis by arguing that this list of examples limits the CDC’s authority to make regulations — an assumption that, in fairness, is grounded in the Supreme Court’s interpretation of the statute. Thus, according to Mizelle, if the law authorizes the masking requirement, “the power to do so much be found in one of the actions enumerated” in the statute’s list of examples. The masking rule must be a regulation providing for “inspection, fumigation, disinfection, sanitation,” or something similar.
But that shouldn’t be a problem. The word “sanitation” appears right there in the statute, and the masking requirement is a classic sanitation regulation. Its whole purpose is to prevent passengers from spewing a dangerous contaminant into the air that can infect other passengers. And, as Mizelle admits in her opinion, dictionary definitions of the word “sanitation” include “measures that keep something clean.” She even quotes dictionaries that provide definitions such as “the use of sanitary measures to preserve health.”
Nevertheless, Mizelle refuses to give the word “sanitation” its ordinary meaning, instead claiming that this word’s meaning must be limited “to measures that clean something, not ones that keep something clean.” (D)
“This pandemic is not over. A new variant could emerge at any time, and cases are rising in some parts of the country. Too many people are, according to the C.D.C., still at risk. The judge’s ruling may argue that the organization has exceeded its statutory authority, but that doesn’t mean that we’re out of the woods.
It’s not yet time to give up on measures that might protect the public and make places and activities safer for those who cannot protect themselves. But instead of continuing to bicker about things that have become hopelessly politicized like mask mandates, those in public health could focus on efforts that might make much more of a difference. One way forward is to identify and vocally get behind policies and tools with potentially higher impact and lower risk of backlash.
One of the most important is getting better ventilation in many buildings across the country. Too many don’t have filtration capabilities to remove infectious particles from the air, and too many aren’t of high enough quality to prevent spread.
Another policy that was important before Covid but is now imperative involves robust sick leave. Too many Americans are fearful of staying home if they’re ill, afraid to lose income or, even worse, employment. The American work culture still values toughing it out, and campaigns are needed to explain that this is not only misguided but also dangerous.
The law also needs to support better work accommodations for those truly still at increased risk, especially the immunocompromised. Some people may need to work from home; others may not be able to work at all. They and even some of their caregivers may need extra support as long as risk from Covid exists.
It is intolerable that disparities in the health care system still exist that prevent Covid-19 treatments from being equitably available to all. Making them free is necessary but not sufficient. The testing, prescription and sourcing need to be easily accessible for everyone, and yet many of those who need the most help are struggling to get it.
Cajoling has gotten the United States as far as it’s going to get on immunizations. Mandates work, but they’ve become politically toxic as well. America’s public health apparatus needs to get much more innovative with vaccination campaigns. Health workers could go out into communities door to door or where people work or spend their time and could offer them immediate immunization. We could do better at explaining how vaccines are free, safe and easily received. Public health departments should train a legion of trusted voices within different populations to help with the effort…
Committing to large-scale efforts that are less contentious and more effective seems like an easy choice. We spend too much time fighting one another and not enough time fighting the pandemic. Every day we do so, everyone loses.” (E)
“Cases are increasing in more than half of the 50 states. But Covid-19 hospitalizations are close to their lowest level since the government began tracking that metric in July of 2020. As the use of at-home tests rises, the Institute for Health Metrics and Evaluation has warned that there is potentially a huge undercount of cases because those results often don’t get reported. They estimate that only about 7% of positive cases in the US are being detected — suggesting that the case rates are 14.5 times higher than reported.
Still, at a time when about 66% of Americans are vaccinated with at least their initial series and less than a third have received their boosters, many are signaling that they are ready to move on and live with the virus — with only 1 in 10 calling the pandemic a crisis in a recent Axios-Ipsos poll.
That has left President Joe Biden and other Democrats in a tenuous position where they are still urging Americans to take the virus seriously — cognizant that another surge from a new variant could trigger a backlash against the party in power in November — but aware that Republicans will quickly weaponize any perceived retrenchment on Covid restrictions. The GOP has already hammered Democrats in some races for being too heavy-handed when it came to mask mandates, limitations for businesses and keeping children out of school during the height of the pandemic, and in some cases, have moved on to attacking Democrats for high gas prices, crime and inflation.
In a sign that even Democrats have been eager to move away from masking requirements, four senators facing reelections this fall joined with most Republicans in supporting a resolution from GOP Sen. Rand Paul of Kentucky last month to repeal the federal mask mandate on public transportation…
Congress left Washington earlier this month for a two-week recess without passing a $10 billion Covid-19 package that had been crafted through bipartisan negotiations led by GOP Sen. Mitt Romney of Utah and Senate Majority Leader Chuck Schumer, a Democrat of New York. The package was focused on preparing the US for preventing future outbreaks and included funds for testing, treatments and therapeutics — paid for in part by repurposing funds from last year’s Covid relief package.
But it stalled after Republicans demanded a vote on an amendment that would restore Title 42, a Trump-era rule imposed during the pandemic that allowed the US to immediately send immigrants back to their home countries because of the public health emergency. The Biden administration’s decision to roll back Title 42 by May has become a central issue in this midterm campaign year, drawing criticism not just from Republicans but also from a number of vulnerable Democratic lawmakers, who say the administration has yet to formulate a plan to deal with the surge of immigrants at the southern border that is likely to follow the phase-out of that rule.
While it is unclear how soon Congress might move on the Covid package given the impasse over immigration, Biden could face an embarrassing situation when he leads a second global summit on Covid-19 in May after US lawmakers rebuffed the administration’s requests to provide more funding to subsidize global vaccines. Earlier this month, then-White House Covid-19 response coordinator Jeff Zients framed that failure to include funding for the global Covid response in the latest package as “a real disappointment.”
But it also was a sign of lawmakers’ perception that the issue is receding as a top concern for most Americans, as state governments and localities once again take the lead on Covid guidance and response. In the current patchwork, the rules hinge as much on politics as they do on science and that is likely to affect how local lawmakers shape rules for their public transit systems now that the federal rule has been struck down.” (F)
“Over the past month and a half, a number of cities, including Philadelphia, lifted mask mandates that had been in place for some of the deadliest months of the Covid-19 pandemic, signaling that a return to normalcy was perhaps, once again, near. But another oddly named subvariant soon arrived, and infections began heading upward again. With a low but quickly climbing case count, Philadelphia became the first major American city this spring to order its residents to put the masks back on.
The decision comes at an uncertain time in the pandemic, as new variants of unknown risk show up while the wide availability of home tests has complicated official tallies of new infections. The Omicron subvariant known as BA.2 reversed a nationwide decline in new cases, but it is spreading in a country that is better vaccinated than when the Delta variant arrived last year. There are good antiviral medication options now. And so far, a spike in hospitalizations has not followed the spike in infections.
At the same time, many people, even some of the most cautious, have lost their appetite for vigilance, and rules have grown harder to keep track of. Seeking to forestall a new surge, the Biden administration extended the federal mask mandate on public transportation for two more weeks, but then a federal judge in Florida vacated the mandate on Monday. Hours later, the Southeastern Pennsylvania Transportation Authority lifted its mask mandate for customers and employees.
As cases tick up, local and state leaders across the country will have to decide if a point comes when recommendations are no longer enough and policies like mask mandates are again called for.
“From the kind of larger public health perspective, this is a constant dance that we are in, especially here in the United States, of when to put things into policy,” said Dr. Megan Ranney, an emergency physician and academic dean of the Brown University School of Public Health.
For Philadelphia’s health department, that point was reached last week, when a rising number of cases automatically triggered the mask mandate. The city of 1.6 million people has been broadly compliant with public health directives for the past two years, and masking was widespread even without a mandate. Still, the reversal presents a case study for other cities, a test of how thin patience may have worn for pandemic restrictions, even in a place where thousands of people have died from Covid-19…
It’s hard to keep track of mask rules. After the Biden administration extended a federal mask mandate on public transportation for two weeks, a judge vacated the order. And hours later, the Southeastern Pennsylvania Transportation Authority lifted its mask mandate for customers and employees…
“If I’m vaccinated, why do I have to wear a mask?” fumed Myesha Romero, 31, whose displeasure was hardly concealed beneath a red mask with the Temple University logo. “What’s the damn point?” she asked. “Every day it’s a new rule.” Coretta Nesmith, 32, sitting maskless in a row of seats at the other end of the laundromat from the counter, smiled broadly. “You can tell my view,” she said.” (G)
“Biden officials “are trying to project this nonchalance that we’re back to normal, even in D.C., in these corridors of power,” said Gregg Gonsalves, an infectious disease expert at Yale University. “It gives the impression that they don’t care and infections don’t matter…This is all about political expediency and optics more than anything else, and it’s entirely depressing.”
Taking this kind of approach could haunt the country because of the long-term health risks of infection, including for the vaccinated, critics say.
“I want the administration to be mindful that downplaying cases is a very dangerous and an inaccurate approach,” Abraar Karan, an infectious disease doctor at Stanford University, who called the administration’s behavior “cognitive dissonance.”
“It doesn’t make sense,” he said.
Emblematic of the risks the administration is taking, several public health experts say, is this month’s Gridiron Club dinner, during which more than 600 Democratic and Republican officials partied with members of the press, including from POLITICO, maskless for hours indoors. More than 13 percent of the 625 revelers later tested positive, including White House aides, New York City Mayor Eric Adams, journalists and at least two Cabinet secretaries.
Tom DeFrank, the Gridiron Club president and a veteran White House correspondent, said he wasn’t aware of anyone pushing precautions beyond vaccination, including Biden officials. The first invitation went to Fauci, who said he would be “delighted” to attend. “The fact that he was coming was seen by all of us as a good sign,” he said…
CDC spokesperson Jason McDonald said the agency recommends that individuals test before indoor gatherings, though added that “this event is an example of what living with COVID-19 could look like,” with no deaths or hospitalizations due to high vaccine coverage.
The administration’s critics, like Ganapathi, say the example underscores the danger of guidelines that recommend people gauge risk for themselves rather than for the public.
“The CDC gives cover for all these activities,” Ganapathi said. “It’s going to be very hard to go against it because we look at the CDC as the foremost authority here, if not the world.”..
In recent days, several D.C. universities increased their Covid protections in response to spiking infections in the city, she noted. Howard University turned to remote learning for the rest of the semester and George Washington University and American University reinstated indoor mask requirements…
In the absence of strong CDC recommendations to do so, event organizers are unlikely to put mitigation measures in place, said Jeremy Faust, an emergency physician at Brigham and Women’s Hospital and an instructor at Harvard Medical School.
The White House Correspondents’ Association dinner, set for April 30, recently upgraded its requirements to include vaccination as well as a negative same-day test. President Joe Biden and the first lady plan to attend, according to the association.
But other recent D.C. events involving administration officials had no measures in place.
“We can’t just look at poll numbers and throw up our hands,” said Raifman, of Boston University. “We don’t poll people about whether they want speed limits.
“Part of having a functioning society,” she added, “should be mitigating the amount of Covid in the air.” (H)
“SHAPIRO: So if it was a question of authority whether the CDC is allowed to do this, is it clear what kinds of powers the CDC has?
HUANG: Well, traditionally, the CDC makes the most use of its soft powers; you know, using science and reason to persuade states and individuals to do things for the sake of public health. But it also has hard powers which go back to the 1944 Public Health Service Act. In the past, the agency has used these to quarantine individuals. And in this pandemic, CDC has been using them to issue broad orders on a range of things, like making travelers test and mask to banning evictions and turning migrants away at the borders. Dr. Marty Cetron, the CDC’s head of global migration and quarantine, told me last year that this is new territory for the CDC…
LINDSAY WILEY: A lot of the general public and a lot of federal judges feel like, you know, this isn’t exactly what CDC’s role should be; this is something state and local governments are doing, and it should really be left to them.
HUANG: Ultimately, the Supreme Court said CDC didn’t have the authority to do it, and they struck it down. Now, that was one ruling on evictions, but law experts say it had a ripple effect. Lower courts could use it to limit the CDC’s powers too, and the judge in Florida did cite it this week as she canceled the travel mask mandate.
SHAPIRO: What would that ripple effect do? If the CDC’s powers get restricted more broadly, what kind of impacts could that have on public health?
HUANG: Well, health experts told me that they worry that limiting public health powers is shortsighted. Here’s Wendy Parmet, a health law professor at Northeastern University.
WENDY PARMET: You can’t assume that everything in the future is going to look either epidemiologically or politically like what we have seen.
HUANG: She says that the next pandemic could be very deadly to kids or one where Republicans might want more restrictive measures than Democrats, as they did during the Ebola outbreak. She says that the CDC needs to have flexible powers to deal with health threats effectively. Now, ultimately, Congress may need to step in and spell out the agency’s powers, but with the current political climate, it’s not a clear path.” (I)
- A.CDC says masking still necessary: Assessment to trigger DOJ appeal of judge’s ruling on mask mandate, by Joey Garrison, Kevin Johnson and Bailey Schulz, https://www.usatoday.com/story/travel/news/2022/04/20/doj-appeal-mask-mandate-cdc/7374402001/
- B.DOJ appeals federal ruling on transportation mask mandate, By Betsy Klein, Paula Reid and Evan Perez, https://www.cnn.com/2022/04/20/politics/white-house-masks-on-planes/index.html
- C.Inside the ruling striking down the mask mandate and what comes next, By Tierney Sneed, https://www.cnn.com/2022/04/19/politics/cdc-mask-ruling-legal-explainer/index.html
- D.The Trump judge’s opinion striking down the airplane mask mandate is a legal disaster, By Ian Millhiser, https://www.vox.com/2022/4/19/23031891/supreme-court-trump-mask-mandate-airplane-mizelle-biden
- E.We Politicized Masks. Now What?, By Aaron E. Carroll, https://www.nytimes.com/2022/04/20/opinion/covid-mask-mandate-policies.html?referringSource=articleShare
- F.Ruling striking down CDC mask mandate sparks mixed emotions and new worries for Biden administration, by Maeve Reston, https://www.cnn.com/2022/04/19/politics/mask-mandate-overturned-biden-administration-analysis/index.html
- G.As Philadelphia Puts On Masks Again, Other Cities Watch Closely, By Campbell Robertson and Jon Hurdle, https://www.nytimes.com/2022/04/18/us/philadelphia-mask-mandate.html?referringSource=articleShare
- H.CDC strategy on masks could haunt the country, By RACHAEL LEVY, https://www.politico.com/news/2022/04/21/cdc-strategy-masks-biden-administration-00026709
- I.A look at how much authority the CDC actually has, by Pien Huang, https://www.npr.org/2022/04/20/1093846830/a-look-at-how-much-authority-the-cdc-actually-has
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