A federal court judge in Florida said the Centers for Disease Control and Prevention had overstepped its authority in requiring masks on public transportation, a mandate that legal experts considered well within the bounds of the agency’s charge to prevent the spread of covid-19 across the nation.
The CDC said late Wednesday that it had asked the Department of Justice to appeal the decision — a move the DOJ left up to the agency. That will put the issue before one of the nation’s most conservative-leaning appellate courts, the 11th U.S. Circuit Court of Appeals.
Public health experts worry the ruling, unless overturned, will hamper the agency’s ability to respond to future outbreaks.
The outcome of the appeal will shape what the agency does the next time an outbreak occurs. And the ongoing debate highlights a civics lesson: The U.S. gives most responsibility for public health measures to states. The federal role has been more limited but could be further clarified by Congress.
But the case also comes as Congress — and the country — remains sharply divided over just about everything having to do with covid, so passing any kind of legislation could prove impossible. That leaves the courts to interpret what is already on the books.
Federal judges are often called to consider whether a federal administrative action meets statutory requirements. Mizelle’s ruling, while giving a nod to the importance of controlling the covid epidemic, said that wearing a mask “cleans nothing” and at most only “traps virus droplets,” concluding that it “neither ‘sanitizes’ the person wearing the mask nor ‘sanitizes’ the conveyance.”
“What this case does is it kind of establishes a baseline that says, ‘We’re going to keep the public health authorities to their statutory grant of authority,” he said. “That’s an important distinction because state legislatures or even Congress have weighed the policy implications. They’ve realized there’s a balance here.”
Other legal experts say this case is a bit different because the CDC’s authority over interstate travel is more clear-cut than any power it might have over rental units. “The transportation mask mandate was a textbook example of CDC’s mandate and its legitimate powers,” Gostin said.
Meanwhile, the requirement to wear masks on planes, trains, and subways is on hold — and major airlines wasted no time in telling domestic passengers they can take them off.
States, not the federal government’s CDC, have the broadest authority over public health efforts to control disease. Their public health agencies, or elected officials, have a range of authorities, including the ability to require masks in schools or businesses. Governors can issue stay-at-home orders during public health emergencies. And health departments routinely track outbreaks of communicable diseases and inspect restaurants for pathogens or vermin.
But states don’t have authority over interstate commercial flights.
“One day there will be a really scary virus that will come to the shores of the U.S. and we will look to the CDC to protect us and what we’ll find is an agency that is frightened to act, gun-shy, and always looking over its shoulder,” Gostin said.
He and other public health experts said it might also be time for Congress to review and clarify the agency’s authority.
“Most of what CDC does really is about, ‘Here’s our recommendation — we strongly urge you to comply,'” he said. “And then it’s up to typically state and local health departments or states in general to figure out how you’re going to achieve high compliance.”
But such recommendations rely on trust in agencies, something that has cratered during the pandemic. And, said Nowak, public health measures at all levels — federal, state, and local — have landed in court, in part because of misperceptions about how willing the American public would be to comply. “A lot of it was based on assumptions about compliance — that there would be high compliance by the public, that they would share the sense of urgency, and would place a high priority on stopping the spread of a virus,” Nowak said.
The American Public Health Association’s Benjamin said there’s little time to waste. He said the reason public health officials need established lines of authority is because public health emergencies — whether that’s the emergence of a new variant of covid-19 or some future pandemic — require quick action.
“We will not have time to fool around with the courts making a decision,” he said.
KHN (Kaiser Health News) is a national newsroom that produces in-depth journalism about health issues. Together with Policy Analysis and Polling, KHN is one of the three major operating programs at KFF (Kaiser Family Foundation). KFF is an endowed nonprofit organization providing information on health issues to the nation.
