The Biden administration announced on Tuesday that it intended to appeal a Florida judge’s ruling that struck down a federal mask requirement on airplanes, trains, buses and other public transportation — but only if the Centers for Disease Control and Prevention decides that extending the measure is necessary.
The announcement from the Department of Justice came after a day of back and forth inside the White House, as administration officials faced a legal and political quandary: whether to let the judge’s ruling stand or to fight it, knowing that an appeal could result in a higher court, perhaps the Supreme Court, ruling against the administration and setting a lasting precedent that could undercut the C.D.C.’s authority.
In the end, the administration charted a careful course, publicly objecting to Monday’s ruling but putting off a final decision about whether to contest it. The Justice Department and the C.D.C. “disagree with the district court’s decision and will appeal, subject to C.D.C.’s conclusion that the order remains necessary for public health,” the department said in a statement.
“You are in the position of having two horrible choices,” said Lawrence O. Gostin, an expert in public health law at Georgetown University. “One choice is to risk forever taking away C.D.C.’s powers if this goes up to the 11th Circuit and ultimately the Supreme Court.
“And on the other hand,” he added, “if you let what I consider to be a lawless decision by this judge go forward, then C.D.C. is going to be gun-shy about doing things that it deems effective for the protection of the American public.”
The mask mandate — which also applied to transportation hubs like airports and train stations, and even to ride-sharing services like Uber — had been set to expire on May 3 even before the judge struck it down on Monday.
If the C.D.C. decides there is a public health basis for trying to reinstate and extend the mandate, the Justice Department will swiftly file an appeal. But if the C.D.C. decides otherwise, the administration will not appeal and the case will instead end as mooted — but without any signal of executive branch acquiescence to the judge’s view of its authority.
The Justice Department “continues to believe that the order requiring masking in the transportation corridor is a valid exercise of the authority Congress has given C.D.C. to protect the public health,” its statement said. “That is an important authority the department will continue to work to preserve.”
