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DOJ may appeal mandate ruling, if the CDC says masks are still needed

STEVE INSKEEP, HOST:

Airports look very different this morning than they did a week ago. People's masks are off unless they choose to wear them. A federal judge in Florida disallowed the federal mask mandate for public transit. The CDC is deciding what it thinks of this. It is considering whether the mandate should continue for public health. And if it should, the Biden administration may appeal. In a moment, we'll ask what the law says. But we begin with the voices of air travelers around the country.

DANIEL MUNOZ: My name is Daniel Munoz (ph). I live in Silver Spring, Md., and I am going to Santiago, Chile. I think we should still have the mask mandate in effect. COVID cases are increasing. But this screams politics. This is not the direction that we should be going in.

HEATHER STAKE VANNEMAN: Heather Stake Vanneman - finally, everybody caught up to science. A majority, I would say, 80% to 90% did not have masks. There were still a few. And I don't know. They maybe just didn't get the memo. Or maybe they're still believing the hype. I don't know.

SUZANNE STRAUSS: Suzanne Strauss (ph).

ALICE: My name is Alice (ph). We're traveling from Minnesota.

STRAUSS: I would say 30% were still wearing them, 70 not.

ALICE: In - our connecting flight was in Chicago. Over the overhead speaker, though, they were still announcing that it was a federal law that you had to. So I think that was probably confusing people, too.

JOSEPH THOMAS SULLY: My name is Joseph Thomas Sully (ph). I'm sitting here in Bush Intercontinental Airport, just got back from Jordan. People now have a choice to get their vaccinations and take the masks off finally. And if people don't want to get vaccinations, they should continue to wear a face mask or keep the face mask off and take their chances because life is one big risk. You probably have a greater chance of dying driving to and from the airport than you do dying from COVID.

ELLEN BITSON: Ellen Bitson (ph) - I don't know what to believe about the COVID. I don't really know what to believe about the mask mandate. I work in the medical field. I've seen what happens in ICU. It's bad, but only certain people. So I'm not - I really have mixed feelings.

LOU PERFETTI: I'm Lou Perfetti (ph), and I'm picking up my wife. She's coming in from Atlanta. I see a lot of people without the masks. And I think they're like me. They're relieved to get it off. And I think everybody should be allowed to make their own choice. And I'm making my own choice. And hopefully other people will do what they think's best for them.

INSKEEP: Voices of people from across the country - now, as we wait for the administration's judgment of whether to appeal, let's discuss the law. Lindsay Wiley is a professor of public health law at UCLA.

Welcome.

LINDSAY WILEY: Thank you.

INSKEEP: So Judge Kathryn Kimball Mizelle says a mask mandate is not authorized by the law. And there's a 1944 law that says the government can stop the spread of disease by ordering, and I'm going to quote here, "ordering inspection, fumigation, disinfection, sanitation, etc." And the government says sanitation can include keeping the air clean with a mask. But the judge says sanitation just meant something else in the dictionary in 1944. Was she wrong?

WILEY: Well, I think one key move that's been ignored in some of the discussion of this case is that she also eliminated a lot of important language in that etc. that you mentioned, Steve. So the Congress in 1944 - there's legislative history to show that they specifically contemplated, you know, can we in this room anticipate in specific terms every type of threat that a future administration might face and every type of response that might be evidence-based and might be needed to mitigate the spread of disease?

INSKEEP: Oh, let me stop you.

WILEY: And they decided, no. We can't.

INSKEEP: You sent me back to the law here. And it does say you can provide for sanitation, pest extermination and these other things. And then it says and other measures, as in his judgment, may be necessary. Did the judge not consider that other measures are specifically, explicitly allowed in the law?

WILEY: I think she - you know, she ignored that language, decided that it had to be one of the specifically listed examples. More importantly, she substituted her own judgment about whether this measure is necessary at this point in the pandemic for the judgment of experts in the administration who are appointed based on their scientific expertise.

INSKEEP: What are the implications if this ruling were appealed and were upheld on appeal, which is always plausible?

WILEY: You know, this decision is different from some of the other decisions we've seen in cases like the eviction moratorium. This isn't just about limiting federal power to coordinate the response or create a floor. It creates a true vacuum in administrative authority to implement swift responses. There's something state and local governments can't do. And requiring masks on interstate and international transit is one of those gaps in state and local authority that the Biden administration was identifying and filling with this order. Whether you think it's time for the administration to lift this mask mandate or not, it's dangerous that if this decision is allowed to stand, no administration will be able to issue a similar order, even in far worse conditions.

INSKEEP: Meaning if we had another wave of this pandemic or, God forbid, some different pandemics, some worse pandemic, the government could not do this if this ruling stands.

WILEY: The administrative agencies could not do this if this ruling stands.

INSKEEP: I want to ask if perhaps technology has outrun the legal debate. I'm just thinking that N95 masks are now very widely available, which they really weren't in 2020. They seem to give the wearer some protection even if the other person is unmasked. Can people just make their own choice here and not worry about it?

WILEY: I think over the last few months, we've seen government officials struggling to navigate the details of mask requirements, especially when the emerging evidence is evolving about what kind of masks are effective, which kinds of masks are more effective and what the purpose of a mask is, whether it's to prevent spread of infection by the mask wearer or to protect the mask wearer. But the bigger problem here is that judges aren't supposed to be substituting their own judgment about these questions, about which measures are good or bad or effective or not. Congress gave that power to federal health officials, who are appointed based on their scientific expertise.

INSKEEP: Can you just help me out, then, with the Biden administration's thought process? Suppose the CDC says we need a mask mandate. The Biden administration is thinking about that, but also thinking about the future. Is it better for them to just ignore this ruling and let it be what it is? Or do they really need to appeal and get it overturned for future crises?

WILEY: There's a real gamble involved here. And I think the administration is facing tough decisions. The Supreme Court, if the case makes it that far, could decide it in a way that preserves at least some room for a future administration to require masks on interstate transit, at least in some circumstances. I definitely think that's possible. But the Supreme Court could endorse the trial court's reasoning. And it might be better to leave this week's decision as it stands now, since a single lower court decision doesn't have the same power to bind future actions as a Supreme Court ruling would.

INSKEEP: It's a little unfair, but I'm going to ask it. Your gut feeling - if it came down to you, would you appeal?

WILEY: I think I would. I think there's a real chance that the Supreme Court would at least adopt a better reasoning, at least leave the door open a crack for future actions in response to even more dire threats.

INSKEEP: Lindsay Wiley is a professor of public health law at UCLA. Thanks so much.

WILEY: Thank you. Transcript provided by NPR, Copyright NPR.