TSA will not enforce mask mandate after judge strikes down requirement. What happens next?

How airlines, public transit and the Biden administration are responding as one of the last pieces of pandemic-era public health protections comes to an end

Alex Woodward
New York
Tuesday 19 April 2022 01:50
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People Urged to Mask Up as COVID Cases Continue to Rise in New York

A federal judge in Florida has struck down a mask requirement for all plane, bus, train and other public transportation travel, days after the US Centers for Disease Control and Prevention extended the public health mandate as officials monitor a spike in Covid-19 infections across the US.

The ruling on 18 April comes as the seven-day average for confirmed daily US infections nears 40,000, fuelled by the more-contagious BA.2 variant, as state and local governments loosen pandemic health restrictions, including mask guidance and proof of vaccinations.

A federal order covering all public transit remained one of the last pieces of pandemic-era public health protections, requiring travellers to wear masks for airline travel and on subway trains, buses, taxis, app-based rides and at transit hubs like airports, ferry terminals, subway stations and ports, with enforcement through the Transportation Security Administration.

But following the ruling on Monday, the agency announced it will no longer be enforcing the requirement. Within hours of the ruling, several major US airlines – American, Delta, Southwest, United and Alaska Air – announced that masks will no longer be required to board their flights.

The CDC continues to recommend that people traveling on public transit wear face coverings to reduce the risk of Covid-19 transmission – and public transit agencies at the local level have suggested they will keep their mask requirements in place, for now.

The Metropolitan Transit Authority – the agency that oversees New York City’s bus and subway system, the largest in the country, with more than 3 million daily passengers – will continue to follow CDC guidance for its trains and buses as it reviews the ruling, according to a spokesperson.

Amtrak’s mandate also “remains in place” as the rail service awaits guidance from federal authorities, according to a statement.

Masks also “will continue to be required” on NJ Transit vehicles as officials monitor the case, according to the agency.

The US Department of Justice has not yet announced whether it intends to appeal the ruling.

The CDC order was initially set to expire on 18 March before its extension through mid-April. Last week’s renewal of the order extended the mandate through 3 May.

Chief executives from several large US airlines have urged the Biden administration in recent weeks to let the order expire.

Alaska Airlines said “guests and employees have the option to wear a mask” following Monday’s ruling.

Delta announced that “effective immediately, masks are optional for all airport employees, crew members and customers inside US airports and onboard aircraft.”

United Airlines announced that “effectively immediately” masks will no longer be required for domestic flights and select international flights.

The Association of Flight Attendants, a union that represents roughly 50,000 flight attendants on 20 airlines, is urging “calm and consistency” in airports and on planes as federal agencies respond to the ruling.

Passengers wear masks at the International flights terminal of the Los Angeles Airport, in Los Angeles, California, USA, 13 April 2022.

“The last thing we need for workers on the frontlines or passengers traveling today is confusion and chaos,” organisation president Sara Nelson said in a statement. “Traveling can be stressful enough and safety comes first with respect for everyone utilizing collective modes of transportation.”

Implementing and communicating new procedures throughout the airline network will take a minimum of 24-48 hours to update signage and communicate changes to travelers and staff, according to the union.

“While we all look forward to the day masks are no longer required, we also know the federal mask mandate for transportation was critical in its early days for confidence in travel and safety for workers and travelers while mitigation factors such as vaccines, adequate supplies of [personal protective equipment] and testing became more accessible,” Ms Nelson said. “We urge all leaders to consider a thoughtful transition and implementation to any new policy, which also includes on-going personal choice of protection for crew and passengers.”

On Monday, Donald Trump-appointed US District Judge Kathryn Kimball Mizelle voided the mandate in a 59-page ruling that argued the federal health agency exceeded its legal authority under the Public Health Services Act of 1944.

Judge Mizelle – a 35-year-old former clerk to Supreme Court Justice Clarence Thomas – was nominated to the bench by the former president and confirmed in the US Senate days after he lost re-election in November 2020.

The American Bar Association determined she was not qualified for the lifetime appointment, citing a lack of experience. She was confirmed in a party-line vote.

In her ruling, she wrote that the CDC’s order was “arbitrary and capricious” while the government’s argument that the mask requirement was put in place for “sanitation” purposes fell short.

Kathryn Kimball Mizelle

“Wearing a mask cleans nothing,” Judge Mizelle wrote. “At most, it traps virus droplets. But it neither ‘sanitizes’ the person wearing the mask nor ‘sanitizes’ the conveyance.”

In a legal filing defending the requirement last month, lawyers for the Justice Department said the plaintiffs behind the challenge to the mandate relied on an “unduly narrow and grammatically incorrect” interpretation of the public health law.

Under congressional authorisation, health officials can make and enforce public health policies “necessary to prevent the introduction, transmission, or spread of communicable diseases” by using “sanitation” and “other measures.”

Justice Department attorneys also noted that the US Supreme Court determined that such measures prevent disease “by identifying, isolating, and destroying the disease itself”.

“It is indisputable that the public has a strong interest in combating the spread of Covid-19,” Judge Mizelle wrote. “But the mandate exceeded the CDC statutory authority, improperly invoked the good cause exception to notice and comment rulemaking, and failed to adequately explain its decisions. Because our system does not permit agencies to act unlawfully even in the pursuit of desirable ends, the court declares unlawful and vacates the mask mandate.”

The case at the centre of the challenge stems from a lawsuit from Health Freedom Defense Fund, a “non-profit organization that ‘opposes laws and regulations that force individuals to submit to the administration of medical products, procedures, and devices against their will,’” according to the ruling.

The judge’s ruling granted a motion for summary judgment, in which the case is dismissed before trial.

In a separate case, a group of 21 Republican-led states and groups of pilots and flight attendants have also asked federal courts to strike the mandate, which the Federal Aviation Administration reports has been the source of nearly 750 unruly airline passenger incidents in 2022 alone.

Meanwhile, all statewide mask requirements in the US have been lifted for roughly one month, when Hawaii became the last state to lift its mandate.

The city of Philadelphia, however, has reinstated an indoor mask mandate following a sharp rise in cases. New York City Mayor Eric Adams said the city is “not there yet” as New York’s health commissioner warns that infections climb.

“We’re just not at the place of mandate,” the mayor said on Monday.

White House press secretary Jen Psaki said the administration is reviewing the ruling.

“Certainly no one here is trying to provoke uncertainty with passengers,” she told reporters on Monday. “We also think the mask mandate should be in place and that it’s safer for individuals who are flying to continue to wear masks. We would say to anyone sitting out there: we’d recommend you wear masks on the airplane.”

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