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Do I Still Have to Wear a Mask?

By Steven Ellison, Esq. | Last updated on

When it comes to its COVID-19 rules, the Centers for Disease Control and Prevention is now zero for three.

First, a federal court struck down its rules for cruise ships. Then the Supreme Court threw out its COVID-19 eviction moratorium. And on April 18, a Florida federal judge struck down its mask mandate for planes and public transportation.

Let's take a look at what the mask decision means for travelers. Do we still need to wear masks?

Well, that depends.

The Mask Mandate

We will start with the rule. On February 3, 2021, the CDC issued its mask mandate. The rule required people in the U.S. to wear masks in public transportation hubs (e.g., airports, train stations, etc.) and on most forms of public transportation (airplanes, trains, buses, ride-shares, etc.).

Although agencies generally can't issue rules without giving the public notice and the opportunity to comment in advance, the CDC determined that "good cause," based on a then-spike in COVID-19 infections, justified bypassing its normal procedures.

Judge Rules Masks Not a 'Sanitation' Measure

On July 12, 2021, the Health Freedom Defense Fund and two travelers sued the CDC and other federal officials. They claimed that the CDC lacked the authority to mandate masks and had no legal basis for ignoring its usual procedures.

While the case was working its way through the court, the CDC extended the mandate a number of times, most recently through May 3. Two weeks before that date, however, U.S. District Court Judge Kathryn Kimball Mizelle threw out the mask mandate.

Judge Mizelle first determined that the CDC overstepped its authority. The CDC's authority to issue rules is not unlimited. It rests in the Public Health Service Act. According to the PHSA, the agency can establish, among other things, "sanitation" measures to prevent the spread of infectious diseases.

The CDC claimed that the mask requirement was a sanitation measure, but the judge disagreed. The court decided that if Congress intended for the CDC to be able to make everyone in the country wear a mask when using public transportation, Congress would have said so clearly. The court ruled that because "sanitation" doesn't clearly cover masks, the CDC lacked the authority to require them.

Administration Violated Administrative Procedure Act

Mizelle also concluded that even if the CDC had the power to make people wear masks, it still had to follow normal procedures set out in the Administrative Procedure Act.

Federal agencies generally must publish notice of any proposed rule and give the public the opportunity to comment on it before it can become binding. The CDC did not do this before issuing the mask mandate.

Instead, it relied on a narrow exception in the APA that lets the agency issue a rule without notice if it has "good cause." The CDC argued it had this "good cause" because COVID-19 infections were rampant.

Mizelle ruled, however, that if transmission of an infectious disease was "good cause," then virtually every rule the CDC makes —it is the agency charged with protecting public health, after all — would fall within this exception.

Mizelle also argued that the CDC failed to adequately explain why the mask mandate was necessary. For an agency's decision to be legally valid, the agency must explain the grounds and reasons for it. If those reasons are not rational, they are said to be "arbitrary and capricious" and a violation of the APA.

At the time, the CDC said the mask mandate was necessary for public safety. That may have been true, but the agency didn't explain what evidence it looked at, what factors it considered, or how it reached this conclusion. Without this explanation, the court ruled that the mandate was arbitrary and capricious.

Where We Are Now?

So where does that leave us? Do we have to wear masks?

Again, it depends. The Biden administration is thinking about appealing the ruling and may ask Mizelle or an appellate court for a "stay," which would keep the mandate in effect for the time being.

But the court's ruling applies only to the federal mask mandate. Many states, local governments, and private parties have their own mask requirements. This may include some airports. So unless you are certain you won't need one where you are going, make sure to bring a mask with you, just in case.

However, nearly all major carriers followed the federal court's lead and dropped their masking requirements. That means even if the local airport requires a mask when you are on the plane, you can remove your mask if you want.

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