May 27, 2022

DOJ says it will only appeal mask mandate ruling if CDC gives go-ahead


The Justice Department said Tuesday evening that it would challenge a federal judge’s decision to strike down a nationwide mask mandate if the Centers for Disease Control and Prevention determined the requirement was “necessary for public health.”

The announcement from the DOJ came more than 24 hours after Florida US District Judge Kathryn Kimball Mizelle ruled that the CDC overstepped its authority by imposing the mask rule and ordered that the mandate be nullified.

DOJ spokesman Anthony Coley said in a statement that Biden administration officials believed the rule was “a valid exercise of the authority Congress has given CDC to protect the public health.

“That is an important authority the Department will continue to work to preserve,” Coley added.

Last week, the CDC announced the transportation mask mandate would be extended until May 3 after it was originally set to expire this past Monday. In its announcement, the health agency cited an uptick in COVID-19 cases and claimed it needed more time to examine the BA.2 Omicron subvariant.

A mask on the floor
A passenger ditches their mask now that they are no longer required to travel.
Getty Images/Spencer Platt

“If CDC concludes that a mandatory order remains necessary for the public’s health after that assessment, the Department of Justice will appeal the district court’s decision,” Coley said Tuesday.

The CDC has yet to make any public comment on Judge Mizelle’s ruling.

The DOJ announcement capped a day of mixed signals from the White House on the ruling. President Biden himself told reporters in New Hampshire “that’s up to them” when asked if people should keep wearing masks on planes.

Travelers waiting to be checked in
Travelers are receiving mixed messages on where they need to wear masks.
Reuters/Brian Snyder

However, the president and those traveling with him aboard Air Force One were made to mask up despite the ruling and many airlines and transportation agencies scrapping the mandate.

Onboard the presidential plane, Psaki described the latest 15-day extension by the CDC as “entirely reasonable based on the latest science.”

“Public health decisions shouldn’t be made by the courts,” the press secretary said. “They should be made by public health experts.”

When asked about footage showing airline passengers and workers celebrating the removal of the mask mandate, Psaki responded: “Anecdotes are not data.”

Masks and unmasked passengers
The CDC has not made any public comment on Judge Mizelle’s ruling.
New York Post
 Some people wearing masks, and other deciding not to wear them at LaGuardia Airport.
Some people wearing masks, and other deciding not to wear them at LaGuardia Airport.
Gregory P. Mango

“We don’t make these decisions based on politics or based on the political whims on a plane or even in a poll,” Psaki said. “But I would note in polls … there are still a lot of people in this country who still want to have masks in place.”

Since the judge’s ruling, major airlines and airports in places like Dallas, Atlanta, Los Angeles and Salt Lake City have switched to a mask-optional policy — while cities including Atlanta, Boston, Philadelphia, Washington DC, and Kansas City have done the same on mass transit.

In New York, masks are still required on board buses, subways and taxis as well as at both LaGuardia and JFK airports. In New Jersey, however, masks are optional on NJ Transit, as well as at Newark Liberty International Airport. Customers on the PATH train, which serves both New York and New Jersey, will have to keep their faces covered, while Amtrak has dropped its mask requirement for customers and employees.

With Post wires