• Matthew Inui

To Mask or To Not: The Enduring Battle of the Mask Mandate


Masking mandates in public areas have remained one of the most controversial policies in the last few years as governments try to balance individual liberty with public safety. (烧不酥在上海 老的/Unsplash)


The Mandate


On February 2, 2021, the Transportation Security Administration (TSA) enacted a mask requirement for all passengers on planes, buses, and other means of public transportation. This requirement came after the largest spike in COVID-19 cases at the time. Originally set to expire on May 11, 2021, the mask mandate was repeatedly extended. Most recently, upon recommendation from the Center for Disease Control (CDC), the requirement was extended by 15 days through May 3, 2022.


Dr. Ashish K. Jha, the White House Covid response coordinator, said that the purpose of this extension is to allow the CDC to assess the danger of the new BA.2 subvariant. “If the infection numbers are relatively low,” he said, “then I think it’s reasonable to remove mask mandates.” Even so, the decision to extend the mandate is controversial and has garnered much blowback in the past couple of weeks.


The Response


In an April 8 letter, Airlines for America, the U.S. Travel Association, the Chamber of Commerce, and the American Hotel and Lodging Association collectively argued that the mask mandate extension was economically irresponsible. “These measures are imposing significant costs on the traveling public, airline employees, and the American travel and tourism industries,” they wrote, calling for the elimination of the mandate. Nicholas Calio, the president of the group, added that “it is very difficult to understand why masks are still required on airplanes, but not needed in crowded bars and restaurants; in packed sports arenas; in schools full of children; or at large indoor political gatherings.”


David Freedmen, the president-elect of the American Society of Tropical Medicine and Hygiene, countered, saying that “the difference with other indoor settings is that on an airplane you are trapped until the end of the flight or until everyone disembarks.” Dr. Jha added that “even if [the plane] has the best ventilation, you will not be fully protected.”


On the other hand, many activists believe that the CDC has not done enough. Lucky Tran, a scientist who organized the 2017 March for Science, tweeted, “Millions rely on public transportation every day to get to work or access essential services. While we are in a pandemic, we need mask mandates to keep society open and accessible to all.”


The Decision


Just one week after the mask mandate was extended, a federal judge in Florida struck it down. In her 59-page decision, Trump-appointed Judge Kathryn Kimball Mizelle claimed the mask mandate exceeds the legal authority given to the CDC under the 1944 Public Health Services Act. This law says the agency may only take measures that it deems “necessary,” listing “inspection, fumigation, disinfection, sanitation, [and] pest extermination” as some examples. Kimball Mizelle has interpreted these examples to limit the power of the CDC only to sanitation, holding that requiring people to take hygienic steps is outside of its authority.


Since her decision, many legal experts have found fault with Kimball Mizelle’s reasoning. Lawrence Gostin, a professor of global health law at Georgetown University, said, “if there were ever an instance where the CDC has authority to act, the classic case is to prevent the interstate transmission of a dangerous infectious disease.” Erin Fuse Brown, professor of law at Georgia State University, added that the definition of “sanitation” is different between the public health field and the outside world. :Sanitation was just the old way in public health parlance of taking traditional public health steps to prevent the spread of disease,” she said.


The Appeal


On April 20, just two days after the decision, the CDC filed an appeal to the 11th Circuit Court of Appeals. While the CDC is also trying to keep its mandate in effect, Jen Psaki, the White House press secretary, told CNN+ the appeal was also important “to ensure the CDC’s authority and ability to put mandates in the future remains intact.” However, many fear that the 11th Circuit, which has a conservative bent, will reject the appeal, further cementing the limit to the CDC’s power. Others suspect the case will end up before the Supreme Court, which has a history of striking down Biden’s policies such as the extension of the eviction moratorium and the vaccinate-or-test requirements for large employers’ workers.


As of now, the arguments of the federal government against the ruling remain unknown. Most legal scholars suspect that the government will focus on the clause allowing the CDC to take “other measures” that it deems necessary. Still, the appeals process often takes months, and it will probably be at least another month before any news is released about the case. All the country can do now is wait for the decision that has the power to change the trajectory of all future pandemics.