Willie R. Tubbs, FISM News

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The Justice Department has filed an appeal on behalf of the Centers for Disease Control, which is asking a higher court to throw out a U.S. district judge’s banning of the Biden administration’s mask mandate for airplanes and other forms of public transit; but the case has little to do with the overwhelmingly well-received end of the original mandate.

“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,” a statement from the CDC reads. “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 statement continues, “CDC’s number one priority is protecting the public health of our nation. As we have said before, wearing masks is most beneficial in crowded or poorly ventilated locations, such as the transportation corridor.”

Despite the sanctimony that permeates the CDC”s statement, and the agency’s apparent lack of appreciation for how plane ventilation works, the real reason the Justice Department has filed an appeal has little to do with the present mask-wearing trends.

At present, the Biden administration is not applying much, if any, pressure to airlines and other public transit providers to reinstate mask requirements. In its filing, the Justice Department did not request an emergency injunction that would force the mandate to stay in place while the appeal is heard.

In a world in which people are celebrating the end of mask mandates mid-flight, sometimes in song, perhaps the White House realizes there is no recouping the momentum.

Posting again because Twitter deleted (?)

The end of the #maskmandate has this plane singing

🎶 Throw away your masks 🎶 pic.twitter.com/BvvCNLE6Ts

— Guy P. Football (@Guy_P_Football) April 19, 2022

Rather, as confirmed by White House Press Secretary Jen Psaki on CNN+ on Wednesday, the Biden Administration hopes to preserve the CDC’s right to impose wide-spread mask mandates on public transportation (and presumably more) in the future.

“That’s important for two reasons: One because we think it’s entirely reasonable, as does the Department of Justice, for the CDC, the health and data experts — health experts most importantly in our administration — to be able to have that time to evaluate,” Psaki said. “But also because they want to fight to ensure the CDC’s authority and ability to put in mandates in the future remains intact.”

Psaki added, “We know there’s going to be ups and downs in this pandemic, we’re all ready for it to be over. But we want to ensure that our public health experts are able to take steps, if needed, in the future.”

The problem for the Biden administration is that, in her ruling last week, U.S. District Judge Kathryn Kimball Mizelle found the CDC lacks the legal authority to impose broad restrictions on the public. Rather, the judge wrote, the CDC is only imbued with limited authority to enforce hyper-localized restrictions on specific individuals or animals that pose a definitive risk to public health.

However, the breadth of the executive branch wants desperately to have the 11th US Circuit Court of Appeals certify the CDC’s authority to require masks, which would necessarily establish a precedent for other broad-stroke rules.

“The Department of Justice and the Centers for Disease Control and Prevention (CDC) disagree with the district court’s decision and will appeal, subject to CDC’s conclusion that the order remains necessary for public health,” a statement from the DOJ reads. “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. That is an important authority the Department will continue to work to preserve.”

If there is a silver lining for the mask-opposed, it’s that, in filing this appeal, the Justice Department might have set the stage for the permanent relegation of the CDC to that of a health agency with mostly advisory power and the aforementioned limited ability to require quarantines on people known to have a communicable disease.

According to a report by CNN, attorneys for the Justice Department have warned the Biden Administration that the path to preserving CDC hegemony could backfire.

Even if the CDC prevails in an appeals court – and this is by no means a given as the 11th Circuit Court of Appeals is comprised of Georgia, Florida, and Alabama and has as its presiding justice Clarence Thomas – the case would almost certainly end up before the Supreme Court, which has already struck down multiple COVID mandates.

Were the 11th Circuit to uphold Mizelle’s ruling, this would set a precedent for all 11th Circuit courts that mask mandates are illegal. This ruling would hold no specific authority over other circuits but would be informative to those courts.

If the case was to be heard by the Supreme Court, and were the justices to uphold Mizelle’s ruling, the CDC’s authority to enact mask rules would be squashed nationwide, barring the creation of new laws at the federal level.

For their part, prominent Republicans are continuing to trumpet the idea that such a banishment would be best for America.

“News of the invalidation of the Biden-forced mask requirements by the federal judge in Florida was met with massive cheers and even tears of joy by passengers and flight attendants,” Florida Gov. Ron DeSantis said in a statement shared on his official Twitter account. “Now, Biden is appealing this decision so he can reimpose forced masking requirements and extend the misery of Americans. The proper policy is simple: end all mandates!”

Also on Twitter, Texas Sen. Ted Cruz wrote, “The tyrannical COVID mandates need to end! I’ve long supported an end to mask mandates on public transportation and I will continue to fight until these mandates are gone for good.”

A date for the appeal hearing has not yet been announced.