Opinion | We’re Toying With a Ruinous End to COVID Travel Masking

On Feb. 2, 2021, near the height of the COVID-19 pandemic, the CDC issued a public health order requiring masks in interstate transportation and at transit hubs, including airplanes, trains, and mass transit. The Transportation Security Administration (TSA) issued a security directive to enforce CDC’s order. Ever since, CDC has extended the mandate, with the most recent extension setting the mandate to expire on May 3. The agency was not expected to renew it after that, so long as the current BA.2 surge does not cause significant spikes in hospitalizations and deaths, as occurred in the U.K.

But on April 18, a federal judge struck down CDC’s latest order. The TSA immediately stopped enforcement while airlines abandoned masking rules, creating confusion and chaos at the nation’s transportation hubs. I can’t think of a more ruinous way for COVID-19 era travel masking to end then at the hand of a single federal judge in Florida. First let’s talk about that judge before discussing the implications for CDC and the nation’s health.

The Judge’s Ruling

President Trump appointed Judge Kathryn Kimball Mizelle in late 2020 and the Senate confirmed her on a strict party-line vote, despite the American Bar Association rating her “not qualified.” Judge Mizelle’s recent ill-informed opinion further demonstrates her lack of qualifications. She gratuitously adds fuel to the COVID-19 culture wars in saying unmasked passengers are “forcibly removed from their airplane seats, denied boarding at the bus stop, and turned away at the train station door.” She said it was akin to a “quarantine” which CDC has no power to do.

But of course, the agency has that power. The CDC regulations — which it has implemented for a half century — are known as the “quarantine rule.” Under those regulations, the agency has long exercised powers to detain persons who are infected or exposed. It has exercised that authority without challenge for multiple health threats, including smallpox, tuberculosis, Ebola, and COVID-19 on airlines and cruise ships.

In the last couple days I’ve often been asked, does this judge have such awesome power and shouldn’t the Biden administration simply refuse to comply? She does have that power unless the Justice Department gets the order stayed on appeal. Until that happens, the CDC should comply with the judge’s order. Why? Well, we have been down this road before. When CDC’s housing eviction moratorium first came before the Supreme Court, it was due to expire. The Justices upheld the order, but warned CDC not to test it by extending the moratorium. Biden should have complied, but instead he extended the moratorium. That led the Court to strike down the eviction moratorium, taking that tool out of CDC’s toolbox forever. Whatever we think of a judge’s decision, it is the rule of law — so we must swallow hard and comply.

Waiting on a White House Response

The White House has a tough legal and political calculation to make. The White House just announced if CDC deems a mask mandate necessary, the Justice Department will appeal Judge Mizelle’s ruling. If it appeals to the 11^th Circuit, there is a risk of an adverse result, which sets an even worse precedent. Ultimately, I think the Supreme Court might narrowly uphold the order, but a conservative 6-3 supermajority could significantly narrow CDC’s powers under the Public Health Services Act. So, the White House would be taking a legal risk. President Biden also faces a political risk. The transit mask requirement was likely to expire on May 3, and an appeal would create blowback from governors, the public, and the airline industry. The path of least resistance is to let it drop.

But I advise the White House to fight. Don’t let an ethically and legally erroneous decision stand unchallenged. Why? This opinion literally handcuffs the CDC, making it less able to end the COVID-19 pandemic and, more importantly, to act nimbly and decisively when the next health crisis hits — and it will. The CDC will forever be looking over its shoulder, gun-shy and reluctant to rapidly and firmly respond. Conservatives should be careful what they wish for. Americans will look to the CDC to protect them from the next dreaded outbreak and they will want a strong and vibrant public health agency.

A Dangerous Limit on CDC’s Power

Let’s dig in deeper. There is a conversation to be had as to whether the CDC has the power to reach into a state and regulate individuals or businesses, which it did with the housing eviction moratorium. But the CDC has an undisputed legal and constitutional mandate to prevent the spread of a dangerous virus across state lines or international borders. CDC’s mask mandate was a textbook case of a power at the core of CDC’s authority. If it can’t require an unintrusive health measure on a flight from, say, New York to Los Angeles, then it literally can’t do anything — other than to issue voluntary recommendations. What if a person with multidrug-resistant tuberculosis boards a flight and exposes passengers? Surely CDC could conduct surveillance, contact tracing, and isolate or quarantine infected or exposed passengers. In fact, CDC did just that during the Ebola epidemic originating from West Africa.

The Public Health Service Act (42 USC § 264) authorizes the HHS Secretary “to prevent the entry and spread of communicable diseases from foreign countries into the United States and between states.” That broad power includes “inspection, fumigation, disinfection, sanitation, pest extermination … and other measures, as in his judgment may be necessary.”

Judge Mizelle read that statute so narrowly that it limits CDC to basic sanitation, which is virtually useless against SARS-CoV-2. But it’s vital that CDC should have the powers it deems necessary to protect the public’s health. If Judge Mizelle’s decision is allowed to stand unchallenged, it means that when the next variant hits, say this winter, the CDC won’t be able to require masking or literally any other effective measure. Do we really want to curb CDC’s powers so that it has to fight health emergencies with its hands tied behind its back?

Lawrence O. Gostin, JD, is a University Professor, Georgetown University’s highest academic rank, where he directs the O’Neill Institute for National & Global Health Law. He is also director of the World Health Organization Collaborating Center on National & Global Health Law. He is the author of the book, Global Health Security: A Blueprint for the Future.