The Biden Administration did not have to make a difficult political choice.

  • They need the mask mandates to end before the midterm elections. Public health arguments simply do not support compulsory masking on planes (and few other planes) at this stage in the pandemic when vaccines and therapeutics are available and hospital ICU resources aren’t strained by Covid.
  • But they also face political backlash for ending restrictions as cases are beginning to rise.

They got the mandate out of the way because a federal judge made the decision. The American Bar Association opposed the nomination of the former clerk of Justice Thomas. They had a judge to attack, and politicians can always score points with their base attacking judges.

The Biden administration did not seek an immediate stay of the judge's order. They didn't appeal immediately. If the CDC said it was important to do so, they would appeal. They looked foolish not to have spoken to the CDC yet, but more importantly they forgot that the President doesn't answer to the CDC.

The CDC is asking to appeal the ruling. An unelected judge shouldn't be able to overturn important protections for the American people during a Pandemic. They say they are doing this to protect the CDC's public health authority.

To protect CDC’s public health authority beyond the ongoing assessment announced last week, CDC has asked DOJ to proceed with an appeal in Health Freedom Defense Fund, Inc., et al., v. Biden, et al. 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. 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.

The judge ruled that the CDC did not have the authority to mandate masks, which is in line with the Supreme Court's opinion in Alabama Association of Realtors v. HHS last summer. The judge ruled that the CDC did not follow the requirements of the Administrative Procedures Act. The Administration should have gone to Congress for the authority if they wanted a mask mandate.

The administration is stuck because they said it was up to the CDC and they were forced to argue for the mask mandate when travelers stopped wearing masks and the airline industry asked for the mandate to be over.

In its release, the CDC says masks are important, but that they have failed to articulate the criteria that would lead them to no longer seek a mandate for transportation. They simply say they will continue to monitor public health conditions, but their criteria is a secret one. Travelers can wear well-fitting N95 masks and even have valves since the mask mandate has ended.

The CDC and Administration bungled this. The mandate should have ended without them having to end it. The best thing they can do is file an appeal, without the order being stayed, and then let the appeal become meaningless when the rule expires. It would be worse if they tried to re-impose the mandate with the chaos that would follow.


The smart political move is to allow the CDC to say that they have examined hospitalization data and the state of new variant and that the mask rule can be renewed if new developments warrant it. The people in charge of the White House are not dumb.

In airlines.

Congress could have voted to give the CDC the power to vote on masks. It did not. The federal district court ruling may not be the end of the discussion, and the mandate will likely lapse and the case will be over before the end of the year.

In airlines.

After a federal judge struck down the transportation mask mandate, the Biden Administration made it clear they would no longer enforce it.

In airlines.