A lot of federal pandemic rules relied on executive action rather than legislation. Rather than passing laws giving authority to the President, administrations took aggressive readings of existing authority. That was the case with the federal eviction moratorium (overturned by the Supreme Court), employer vaccine mandate (overturned by the Supreme Court) and federal transportation mask mandate (overturned by a federal district court).
In our polarized society Congress doesn’t legislate very much anymore, though it continues to appropriate. Instead of seeking more authority for the Centers for Disease Control to issue pandemic-era regulations, the Biden administration relied on the same stretching of existing CDC authority under 42 U.S.C. § 264 that the Supreme Court ruled against last summer.
When a federal judge overturned the transportation mask mandate, they basically took the Biden administration off the hook.
- There was little patience left for a mask mandate, and wasn’t appearing to do much good in any case. Airlines themselves were calling for it to be lifted, and the Senate voted to lift it. The rule was the source of much rancor in the skies.
- However lifting the mandate risked having the administration blamed (unfairly) for future virus spread.
- Letting a federal judge rule against it – one appointed by President Trump, no less – was the best of all possible worlds. It allowed the Biden administration to end the mandate, without being blamed for deciding to do so. And it even let them rail against a political decision by an unfriendly judge, almost always a winning card to play.
The Biden administration declared that they would stop enforcing the mask mandate. They said they’d appeal… if the CDC said it was important to do so. They swung at a pitch in the dirt, because the CDC then said it was necessary to defend a broad scope for their authority. This put the Biden administration in the position of having to pursue a mandate in court that they themselves no longer wanted to enforce. (Their own pollsters were telling them the mandate would hurt them in the midterms.)
It was clear the Biden administration didn’t want to re-impose the mask mandate, and were happy to see the obligation to take action to eliminate it lifted off of its shoulders. Even when they appealed they did not seek to stay the district judge’s ruling, or seek expedited review in any form or fashion. Instead they were happy to have the wheels of justice grind slowly.
In fact, did you even remember that this case was still live – and that the Biden administration was still looking for the courts to bless its authority to impose a transportation mask mandate? The date for oral argument has been set: January 16, 2023.
When the administration filed its appeal I wrote that the mandate wouldn’t return and I stand by that – even though oral arguments will come after the midterm elections.