CDC decides to appeal to restore travel mask mandate; DOJ files notice [Updated]

7:45 pm ET update: The Centers for Disease Control and Prevention decided to appeal a Florida judge’s ruling Monday that abruptly vacated the federal travel mask mandate. The Department of Justice said Tuesday that it would appeal the ruling if the CDC determined that the mask mandate was still necessary.

In a media statement late Wednesday afternoon, the CDC said it determined that masks are necessary and told the DOJ to proceed with the appeal. “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 statement said. “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 agency added.

DOJ spokesperson Anthony Coley announced in a tweet Wednesday evening that in light of the CDC’s decision, the DOJ filed a notice of appeal in the case.

For now, the federal mask mandate for transit remains lifted. However, the CDC continued to urge travelers to wear a mask on planes, trains, buses, subways, taxis, rideshares, and transit hubs. “As we have said before, wearing masks is most beneficial in crowded or poorly ventilated locations, such as the transportation corridor,” the agency said. “When people wear a well-fitting mask or respirator over their nose and mouth in indoor travel or public transportation settings, they protect themselves, and those around them, including those who are immunocompromised or not yet vaccine-eligible, and help keep travel and public transportation safer for everyone.”

Original story: The Department of Justice late Tuesday announced that it disagrees with a Florida judge’s ruling that abruptly nixed the federal travel mask mandate. However, the department said it would not immediately seek an appeal or a stay that would keep the mandate in place while litigation continued.

Instead, the DOJ said that it is now up to the Centers for Disease Control and Prevention to determine if the mask mandate “remains necessary for the public’s health.” If the CDC determines that it is necessary, the DOJ will appeal the decision.

The CDC is reportedly undecided on the matter. On April 13, just before the mask mandate was set to expire, the CDC extended it for 15 days so it could assess the state of the pandemic and decide if the mandate was still necessary. The agency noted the recent—and continuing—uptick in cases driven by the BA.2 omicron subvariant. “The CDC Mask Order remains in effect while CDC assesses the potential impact of the rise of cases on severe disease, including hospitalizations and deaths and healthcare system capacity,” the agency said at the time. “[The Transportation Security Administration] will extend the security directive and emergency amendment for 15 days, through May 3, 2022.”

According to reporting by Politico, officials with the Biden administration are still unsure of how the current BA.2-driven uptick will play out—specifically, whether it will translate to increased hospitalizations in the weeks ahead. “There’s no question we’re at a crossroads,” one senior administration official granted anonymity told the outlet.

Further, an official with the Health and Human Services Department, which houses the CDC, confirmed to Politico that “no decision has been made” on whether to appeal the mask mandate’s axing.

Tough calls

In addition to the uncertainty of how the pandemic will play out, the decision to appeal is politically fraught. In the court of public opinion, Americans are split. There was cheering and visible glee among travelers Monday as news of the judge’s order landed, with some stripping off protective face coverings mid-flight. Still, according to polling results from The Associated Press-NORC Center for Public Affairs Research collected in just the last few days, 56 percent of Americans favor requiring people on planes, trains, and public transportation to wear masks, while 24 percent oppose the requirement and 20 percent are neither in favor nor opposed.

There are also legal worries. The federal government clearly thinks the judge’s order was not legally sound in its ruling that the CDC lacked the authority to mandate masks. “The Department continues to believe that the order requiring masking in the transportation corridor is a valid exercise of the authority Congress has given CDC to protect the public health,” the DOJ said. “That is an important authority the Department will continue to work to preserve.” Other legal experts agreed. Lawrence Gostin, an expert in public health law at Georgetown University, described the order to The New York Times by saying it is “what I consider to be a lawless decision by this judge.”

But if the CDC and DOJ move forward with an appeal and lose, it could imperil the CDC’s ability to enforce health measures in the future. And the 11th Circuit Court of Appeals, which has jurisdiction over Florida, where the order originated, may not be hospitable to an appeal. As Politico notes, the majority of judges in the appeals court were appointed by Republican presidents, including six appointed by Trump, and it’s unclear which three judges would hear the appeal.