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CDC defends its authority to issue transportation mask mandate in brief arguing for reversal of ruling that blocked it

“It is difficult to imagine a more direct way to control the spread of communicable disease than a measure that traps infectious particles to prevent their spread,” the agency said in the brief, filed by the Justice Department as part of the appeal of the case to the US 11th Circuit Court of Appeals.

The brief critiqued the district court’s assessment of the word “sanitation” in the relevant statute, with the Biden administration arguing that a mask requirement falls into the conventional understanding of the word.

The Justice Department argued that the district court’s logic would mean the CDC would not have the authority to take on many other kinds of measures it has implemented to limit the spread of communicable disease, noting that the law in question has been used “to prohibit the capture, distribution, or release of certain animals to prevent the spread of monkeypox.”

To defend the manner in which the agency rolled out the mask policy — which the judge also found procedurally flawed in a way that warranted its invalidation — the Biden administration pointed to the Supreme Court’s decision to leave in effect the vaccine mandate for certain health care workers.

“Like the CMS vaccination rule, the CDC’s mask order relied on the emergence of COVID19 variants with increased transmissibility, which threatened to spread rapidly and infect the traveling public,” the administration said in the brief. “The district court’s objection that the CDC took too long to issue the mask order (which was issued nine months before the CMS vaccination requirement) echoes the argument that the Supreme Court rejected in [the vaccine mandate case] and fails for the same reason.”

The transportation mask mandate was declared unlawful in April by Tampa-based US District Judge Kathryn Kimball Mizelle, who blocked the federal government from implementing it nationwide when she issued her decision.

The federal mask mandate remains not in effect. When the Justice Department filed its appeal of the case, it did not ask the 11th Circuit for the type of emergency order that would have quickly put the district court’s ruling on hold while the appeal moved forward.

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