21 States File Lawsuit Against CDC Mask Mandate For Public Transportation

The CDC mandate applies to air passengers on airlines.


Today, 21 mostly “red” States led by Florida sued the Centers for Disease Control to challenge the CDC’s mandate that requires mask wearing on public transportation as well at transport hubs like airports. After a long legal battle, the Supreme Court invalidated the CDC’s nationwide eviction moratorium in August. The CDC claimed that its mask-mandate policy is authorized under 42 USC Section 264.a. In my opinion, the Court correctly concluded that there was no congressional authorization for the eviction moratorium. The plaintiff states are clearly hoping for an identical outcome using the mask mandate.

Both cases have similar issues. However, I believe the mask mandate has a much stronger legal basis than the eviction moratorium. The mask mandate may be upheld in court.

This prospect makes me very unhappy. Mask mandates are something I oppose, except in very specific settings. I believe that their modest benefits to public health are outweighed by the restrictions on liberty and the discomfort caused by wearing a mask. It also undermining normal human interaction which relies often on facial expressions. At a time when nearly all Americans are able to get vaccinations, mask mandates are particularly reprehensible. While those below 5 have very low risk even without vaccine, the majority of people vaccinated are not at high risk. However, one-way masking can be used to protect yourself from the covid. As an additional matter, Reason’s Jacob Sullum explains that the CDC is not allowing the transport mask mandate to be continued, even though the agency has been recommending against mandates for almost all other settings, such as those where there is a greater risk of infection.

However, this case is an example where both law and justice might be in conflict. This case is less clear of the legal issues that led to an eviction moratorium.

Section 264(a), gives the CDC these powers:

The approval of the Surgeon General. [Secretary of Health and Human Services]The Surgeon General is empowered to create and enforce regulations that he deems necessary in order to stop the spread, transmission or introduction of communicable disease from other countries to the United States or their possessions. To enforce such regulations, the surgeon general may order such inspections, fumigation or disinfection of articles or animals that are so infected as to pose a danger to humans, or other necessary measures. [a later statute gives this authority to the CDC rather than the Surgeon General]

The Trump and Biden administrations claimed  the agency could enact a nationwide eviction moratorium under the catch-all provision authorizing “other measures” that the CDC considers “necessary” to stop the spread of disease.

This position was rejected by the Supreme Court because, if it were to be used consistently, it would allow the agency the power of suppression for almost every activity that involves movement between persons. This broad authority would be contrary to the limited powers of other authorities in the statute. “Other measures” should, the Court ruled, only allow measures that are similar to those listed under Section 264. Additionally, the Court emphasized the fact that Section 264 was not meant to be interpreted to allow the CDC to claim the immense power. This is in contradiction to the “major problem” doctrine. It requires Congress to speak clearly to authorize an agency to exercise vast ‘economical’ and ‘political significance.

Many lower court rulings on the eviction moratorium found that it was in violation of constitutional limitations on delegating legislative power to executive agency. This broad interpretation by the government of Section 264 would allow for the CDC to prohibit virtually all human activities. This is a problem of nondelegation. In this article, I discuss the major questions as well as the nondelegation in the eviction case.

The CDC transport mask mandate differs significantly from the eviction orders in a variety of critical ways. They are summarized here in the March 2021 blog post.

Lindsey Wiley Law Professor, an academic leader in public health law worriesThat the reasoning was adopted in SkyworksAnd Tiger Lily [two lower court rulings against the eviction moratorium]This could lead to the invalidation of the Biden administration’s order requiring that masks be worn on interstate transport. The Biden administration also relies upon Section 264(a).

I think this is unlikely because the focus on transportation is much more closely related to the purpose of preventing the “spread of communicable diseases from… from one State or possession into any other State or possession.” It may also fall under the umbrella of encouraging the “sanitation of articles” that promote the spread of diseases across borders. This would mean that the “articles” in question are seats and spaces on airplanes, buses and other forms of transport covered under the mask order. These differences may have been the reason Biden’s counsel concluded that while he was not authorized to issue an order for a blanket nationwide mask, he can impose one that is more focused on transportation.

The mask order is not dependent on the broad interpretation of vaguely-worded “other measure” provisions, unlike the eviction moratorium. The mask order could, instead, be based upon the specific provisions authorizing regulations that promote “sanitation.” It is therefore less likely that it will raise serious question or nondelegation issues. The CDC wouldn’t be able to use the term “sanitation”, to include mask mandates. However, it could allow the CDC to require other restrictive restrictions on public transport, like gloves, hazmat suits and the wearing of more protective gear.

I  readily admit it may be possible to come up with plausible narrower interpretations of “sanitation” that would exclude mask mandates. It’s not a one-sided issue. However, the government has a much stronger case here than in the litigation regarding the eviction ban.

The plaintiffs in this case, in addition to relying upon the precedent of the eviction moatorium on the “major questions” issue, also claim that the CDC order violates Constitutional constraints on federal commandering state governments by requiring them to implement the mandate in state owned transportation facilities. Similar arguments have been made elsewhere in federal contexts, where federal governments try to force states or localities into compliance with federal laws, regulations and gun regulations.

The anti-commandeering argument I find valid. However, the federal government could overcome it by saying that the states are not being regulated in a similar way to private owners of transportation facilities. However, even if they win this argument, it would not end the mandate for masks. Instead it will end the obligation that states enforce the law. For federal law to be enforced in many situations (e.g., War on Drugs), it must depend on the state for cooperation. There are far more state law-enforcement officers than federal agents. TSA workers are just one example of federal law-enforcement personnel that are present at airports. The feds are able to “go it alone” in this situation more than they can in other settings.

Florida’s lawsuit against the transport mask mandate isn’t the only legal challenge. A separate suit was filed by the state of Texas, joined by Rep. Beth Van Duyne, last month. However, this multi-state case is the most notable and prominent of its kind.

There are also procedural issues involved. The federal government could try to dismiss state plaintiffs on procedural grounds. For instance, they might claim that the plaintiffs don’t have standing. In the Obamacare Severability Case, for example, the Supreme Court tightened its procedural controls on state lawsuits against federal governments over the past couple of years.

This is not the place to go in detail about these procedural questions. My prediction is that these cases will be heard on the merits and not dismissed based upon standing. The mandate is applicable to state-owned property, and states must enforce it. This gives the courts a strong argument for tangible harm.

It is possible that this lawsuit will be thrown out if transportation mask mandate expires as scheduled on April 18. However, the mandate was extended multiple times in the past and it is not certain if the Biden administration would do so again.