CDC decides to appeal to reinstate travel mask mandate; DOJ files notification [Updated]

7:45 PM ET update: The Centers for Disease Control and Prevention decided Monday to appeal the ruling of a Florida judge who abruptly vacated the federal mandate for travel masks. The Justice Department said Tuesday it would appeal the ruling if the CDC determined that the mask mandate was still needed.

In a media statement late Wednesday afternoon, the CDC said it had determined that masks are needed and told the DOJ to proceed with the appeal. “It is CDC’s ongoing assessment that at this time an order requiring masking in the covered transportation aisle remains necessary for public health,” the statement said. “CDC will continue to monitor public health conditions to determine whether such an order remains necessary. CDC believes this is a legal order, well within CDC’s legal purview to protect public health,” the agency added.

DOJ spokesman Anthony Coley announced in a tweet Wednesday evening that in light of the CDC’s decision, the DOJ has filed an appeal in the case.

For now, the federal mask mandate for transit remains lifted. However, the CDC continued to urge travelers to wear masks on planes, trains, buses, subways, taxis, rideshares and transit hubs. “As we’ve said before, wearing masks is most beneficial in crowded or poorly ventilated locations, such as the transportation aisle,” the agency said. “When people wear a well-fitting mask or respirator over their nose and mouth when traveling indoors or on public transportation, they protect themselves and those around them, including those who are immunocompromised or not yet eligible for a vaccine, and they help make travel and public transport safer for everyone.”

Original story: The Justice Department announced late Tuesday that it disagrees with a Florida judge’s ruling that abruptly lifts the federal mandate for travel masks. However, the department said it would not immediately appeal or request a suspension to keep the mandate in place while the trial continued.

Instead, the DOJ said it is now up to the Centers for Disease Control and Prevention to determine whether the mask mandate “remains necessary for public health.” If the CDC determines it is necessary, the DOJ will appeal the decision.

The CDC is reportedly undecided on the matter. On April 13, just before the mask mandate expired, the CDC extended it by 15 days so it could assess the state of the pandemic and decide whether the mandate was still needed. The agency noted the recent — and ongoing — rise in cases caused by the BA.2 ommicron subvariant. “The CDC Mask Order remains in effect as the CDC assesses the potential impact of the increase in cases on serious illnesses, including hospitalizations and deaths, and the capacity of the health care system,” the agency said at the time. †[The Transportation Security Administration] will extend the safety directive and emergency change by 15 days, until May 3, 2022.”

According to Politico’s reporting, officials in the Biden administration are still unsure how the current BA.2-driven surge will play out, particularly whether it will translate into more hospitalizations in the coming weeks. “There is no doubt that we are at a crossroads,” a senior official who granted anonymity told the outlet.

Furthermore, an official from the Health and Human Services Department, which houses the CDC, confirmed to Politico that “no decision has been made” on whether or not to appeal the repeal of the mask mandate.

Difficult conversations

In addition to the uncertainty about how the pandemic will play out, the decision to appeal is politically charged. In the court of public opinion, Americans are divided. There was cheer and visible cheer among travelers Monday as news of the judge’s order landed, with some protective face coverings removed mid-flight. Still, according to poll results from the Associated Press-NORC Center for Public Affairs Research collected in recent days, 56 percent of Americans are in favor of requiring people on airplanes, trains, and public transportation to wear masks, while 24 percent are opposition to the demand and 20 percent is neither for nor against.

There are also legal concerns. The federal government clearly believes that the judge’s order was legally incorrect in its ruling that the CDC did not have the power to require masks. “The Department continues to believe that the order requiring masking in the transportation aisle is a valid exercise of the authority Congress has given to CDC to protect public health,” the DOJ said. “That is an important authority that the ministry will continue to work on.” Other legal experts agreed. Lawrence Gostin, an expert in public health law at Georgetown University, described the injunction to The New York Times saying it was “what I consider to be a lawless decision by this judge.”

But if the CDC and DOJ continue to appeal and lose, it could jeopardize the CDC’s ability to enforce health measures in the future. And the 11th Circuit Court of Appeals, which has jurisdiction over Florida, where the injunction came from, may not be welcoming to appeal. As Politico points out, the majority of judges on the appeals court were appointed by Republican presidents, including six by Trump, and it’s unclear which three judges would hear the appeal.