The Daily - How a Sudden Mask Ruling Left the C.D.C. Reeling

Episode Date: April 26, 2022

In January 2021, one of President Biden’s first big moves in office was to sign an executive order mandating masks in airports and on planes and other forms of public transit.But an unexpected ruling from a judge in Florida has abruptly and unexpectedly overturned that mandate — and the implications of the decision could tie the government’s hands when it comes to future health emergencies.Guest: Sheryl Gay Stolberg, a Washington correspondent covering health policy for The New York Times; and Heather Murphy, a reporter covering travel for The Times.Want more from The Daily? For one big idea on the news each week from our team, subscribe to our newsletter. Background reading: In the end, the mask mandate was brought down by a little-known nonprofit, a conservative judge, and chance.While the C.D.C. wants to keep the mandate intact, appealing the ruling is risky: If the Florida decision is upheld, it could permanently weaken the agency’s authority.For more information on today’s episode, visit nytimes.com/thedaily. Transcripts of each episode will be made available by the next workday. 

From The New York Times, I'm Michael Bavaro. This is The Daily. Today. Major breaking news. The Biden administration now says the CDC's nationwide travel mask mandate for airplanes and other forms of transportation is not in effect after a federal judge today struck down the rule. The unlikely story behind how an obscure lawsuit in Florida and a newly appointed judge ended the federal mask mandate on public transportation. A huge shift in travel policy when it comes to the pandemic.

And why the case may endanger the federal government's legal powers to intervene in future public health crises. I spoke with my colleagues, Heather Murphy and Cheryl Gay Stolberg. It's Tuesday, April 26th. Heather, I think for a lot of people, this legal ruling seemingly came out of nowhere. April 26th. Heather, I think for a lot of people, this legal ruling seemingly came out of nowhere and suddenly ended a centerpiece of President Biden's response to the pandemic. But you have been reporting on the origins of this case. So tell us what you found.

Where does this start? This really starts in January of 2021. I know the pandemic is such a blur. It's hard to remember what things were like at that point. But it's worth remembering that almost no one was vaccinated at that point. And infections were really high, about 700,000 a day. And so Biden comes in to office. And the first order I'm going to be signing here relates to COVID.

And one of the first big moves he takes is he, along with the CDC, issues this executive order. Mandating masks be worn, social distancing be kept on federal property, on interstate commerce, etc. That says that masks are now going to be required in airports, on planes, and in other forms of public transit. People start referring to this as the transportation mask mandate. And really, when people were writing about it and talking about it, people were really attributing this to the White House. This is the White House's move. But what it really came down to was a very strong recommendation that was essentially an order from the CDC, the Centers for Disease Control. And the reason they said that they were able to do this is because the

federal government and the CDC have the ability to issue regulations that affect interstate travel when a disease is spreading between states. Got it. And what was the reaction to this mandate? Because I have to say, I don't remember it being issued. And when a new president comes in, they issue a flurry of executive orders. I didn't really remember this one. So initially, I don't think there was a huge reaction because there were so many new mask rules emerging in all aspects of life. And some airlines were already requiring people to wear masks. But gradually, it became more and more tense, particularly after people became vaccinated. And masks became a huge battle point in the skies. And then more recently, as some of these rules around masks began to fall

away in other parts of life, the airline industry, the travel industry, they began lobbying very hard for the White House and the CDC to move this mask requirement for airlines and airports. Because they said they weren't necessary now that people were vaccinated and that we were getting rid of mask requirements in other aspects of life. And in the background, there's all these lawsuits, some by Republican lawmakers who are making a lot of noise about them, and some that really aren't on anyone's radar. And one of those lawsuits that very few people had any idea even existed was this lawsuit in Florida.

Hmm. Tell me about this Florida lawsuit. Who are the plaintiffs? Yes. So this Florida lawsuit has three plaintiffs. The first is this woman, Anna Carolina Dassa, and she lives in the Tampa area. And she was hoping to visit her family in Columbia last August. But her lawyer describes that she could not imagine doing that if she had to wear a mask because she suffered from so much anxiety when wearing a mask. And she feels like she can't breathe and it gives her panic attacks.

And the second is this woman, Sarah Pope. And Sarah Pope also lives in the Tampa area. And she had a similar concern. She couldn't go take a family trip to Hawaii, her lawyer writes, because the thought of wearing a mask for such a long flight gave her anxiety. And there's not a whole lot more explained about these two women in the complaint, except that they both have anxiety when wearing masks and anxiety is not recognized as a disability that you can get a mask exemption for. And so they are arguing that they cannot fly and do the things they want to do because of the mask mandate.

Got it. And then we get to the third plaintiff. We are slipping ever closer to tyranny. And the third plaintiff is not a traveler from Florida who doesn't want to wear a mask. The third plaintiff is this organization called the Health Freedom Defense Fund, which is registered in Wyoming. And it is actually run by this woman, Leslie Mnookian. This should frighten every American who cares about their freedom,

our Constitution, and the future of our nation. And during the early stage of the pandemic, she founded this organization, which she writes is there to fight for what she calls bodily autonomy. Where does this stop? Health Freedom Defense Fund is committing to defending our rights. And she created this organization to help put forward lawsuits against vaccine mandates and mask mandates across the entire country. The basic issue is that the federal government doesn't have the power to tell states or private businesses or anybody what to do. On her website, the organization makes a point that it urges people all across the country to

join so that they can file lawsuits on behalf of them across the entire country. And one of her first targets was the transportation mask mandate, which she found particularly egregious. And her lawyers had the legal strategy to file this lawsuit in Florida, she said, and that she was connected to these two women with anxiety because they are members of her organization. And do you understand why they thought it would be smart to file this lawsuit in Florida, of all places? So, you know, it's quite common actually to be strategic about where to file a lawsuit and to pick a district that seems most likely to be sympathetic ideologically.

And so when her lawyers picked the Tampa area, they were picking a district that had a lot of conservative judges, including judges who were put there by former President Trump explicitly with the idea of helping shrink the administrative state, meaning reeling back the regulatory powers of federal agencies. That was actually a broader vision of that district. So they were likely to get somebody sympathetic there. And which judge ultimately is assigned this case? And what should we know about this judge?

So in terms of getting a judge, they lucked out. Legal experts say they could not have gotten a better judge if they were looking for somebody to be sympathetic to their suit. The judge they got, her name is Catherine Kimball Mizell, and she was appointed by former President Donald Trump. She clerked with Clarence Thomas. She was part of the Federalist Society. She has these impeccable conservative credentials, a lot of people say.

She's also quite inexperienced, according to the Bar Association. The American Bar Association rated her as not qualified to serve on the federal bench because of her lack of courtroom experience. She was 33 at the time of her appointment. But nonetheless, she ends up with this case on her desk. And Heather, obviously this judge was ultimately sympathetic to these plaintiffs. We know that from the ruling she issues. But help us understand what her legal logic was in the ruling. How did she arrive at the decision that President Biden's travel mask mandate should be struck down?

Yeah, so it ended up involving the word sanitation. And to just take a step back here, any judge who was going to evaluate the transportation mandate was going to look at the Public Health Service Act of 1944. That is a law that gives federal officials the ability to make and enforce regulations to prevent the introduction of a communicable disease from foreign countries and inhibit its spread between states. And so no matter what, any judge was going to take a look at that.

Got it. Because it sounds like that's the law upon which the mandate was based. Yes, exactly. And there is this kind of key line that becomes one of the focal points of her ruling. It says that these regulations could include inspection, fumigation, disinfection, sanitation, pest extermination. And then it says also in quotes, and other measures that the authorities judge may be necessary. judge may be necessary. And so there are some people in the public health law world who say, and other measures, basically gives an agency like the CDC the ability to introduce things that aren't explicitly covered in those different examples that they could not account for at the time of writing the law. For example, masks. For example, masks. And there are still others in the public health sphere who say that sanitation actually covers masks. So a lot of people in public health see

two different places within that sentence you just read to us where President Biden would have the legal rationale for a mask mandate. Exactly. But she's not interested in other measures. She's focused on sanitation. And Judge Mizell chose to take a very narrow approach to interpreting the word sanitation, probably the most narrow approach a person could take. She writes that sanitation refers to measures that clean something,

and wearing a mask cleans nothing, she concluded. And therefore, along with some other different kinds of issues she also takes with this whole rule, she concludes that the CDC, the federal government has overstepped its authority and that the Biden administration didn't have the authority to ever issue this mask mandate. Got it. And in that moment, the mask mandate is over. It is, but people were very confused by this. There are a lot of people pushing to end the mask mandate. There were thoughts that it might end very soon, but no one was expecting it to end that day. Right. So I actually went to LaGuardia Airport in New York to try to see how it was playing out. And I went up to travelers, all of whom were wearing masks, and none of them were even aware of this lawsuit.

And when I went up to people at the desk who worked for the airlines, they also seemed confused about what exactly it meant for them at that point. It was really only later in the evening that all the airlines seemed to be on the same page. This is the captain speaking. I'm so sorry now. You know, I'm required a mask. And that's when you start to hear these stories of pilots mid-flight delivering information to travelers that they can take off their masks. Oh my God, is that an effort? And videos of people ripping them off and celebrating. You can follow them and wave them in the air like you just don't care. We'll be coming here with your sex in just a moment.

And stories of other people feeling kind of freaked out that they got on a plane thinking that everyone would be wearing a mask and suddenly everyone's taking them off. The policy is changing right halfway through their journey. Right mid-flight, literally. Yeah. So this becomes one of those moments when a single judge applying her judgment and her analysis can really single-handedly change nationwide policy in a very big and dramatic way. And in this case, in a matter of hours, based on her ruling, that mandate just evaporated.

Yes. And everyone, the airlines, travelers, people who are celebrating, people who are feeling upset about this, are all asking themselves, what is the Biden administration going to do? Are they going to fight this? Or are they just going to let this ruling be the final word on the mandate? And that's it. The transportation mask mandate is just a thing of the past. We'll be right back. We'll be right back. Cheryl, our colleague Heather Murphy just told us that as this ruling comes down, the big question for everyone is what will the Biden administration do?

So what is happening inside the White House when they learn about this ruling? So inside the White House, there's a lot of confusion and a lot of disappointment. The ruling really caught people off guard. The CDC had just extended this mandate, and now they had to scramble along with the Justice Department to figure out, you know, what were they going to do? Right. And the logical next step for any White House that puts into place an order like this and finds that a judge rules against it is to appeal it, right? You would think, but that's not what happened. So what does happen are a lot of internal deliberations, a lot of calls, discussions with the White House COVID response team, the CDC, some outside legal experts,

the Justice Department about just what legal path the Biden administration can and should pursue. So that's what's going on on the inside. But on the outside, there are all these conflicting messages. Josh, why don't you kick us off? Thanks, Jen. Happy Monday. Jen Psaki, the White House press secretary, says at the briefing... So this is obviously a disappointing decision.

The CDC continues recommending wearing a mask in public transit. The CDC still recommends that people wear masks. And the CDC are reviewing the decision. And of course, the department. But then the president takes a trip to New Hampshire and reporters ask him on the trip, you know, Mr. President, people continue to wear masks on planes. What should Americans do if they travel by plane? Should they wear a mask? And Biden says, That's up to them. That's up to them.

Which doesn't sound like a president defending his federal mask mandate. No, it was very odd. People didn't know what to make of it. But by that evening, the Justice Department announced that it would, in fact, appeal the court's ruling, but only if the CDC asked it to. Hmm. Everything you're describing here is very confusing. And as you said, a set of very mixed messages. So what exactly is going on here?

Why does it seem like the White House can't quite decide whether to stand up for its own mask mandate? can't quite decide whether to stand up for its own mask mandate. So there are a lot of complex legal and political considerations to this. And there's really two big questions. The first is, should they try to put this mask mandate back in place immediately? Should they appeal the judge's ruling so that they can get passengers on planes, trains and buses wearing masks again? And that's complicated because the president has already said it's up to them. masks off and, you know, jubilation. And nobody wants to come in and be, you know, the party pooper and have the Biden administration come in and ruin it by going back to court to try to get

this mask mandate reinstated. But the other consideration is really an important long-term consideration, which is that if this judge's ruling stands, it could really tie the CDC's hands for the future, for all future pandemics. Explain that. So this judge really went right to the heart of the CDC's core authority to protect the public health of Americans. Under the 1944 Public Health Services Act, the CDC had the legal authority to do what it did.

When it passed the law, Congress authorized the CDC to make and enforce regulations that, in its judgment, are, quote, necessary to prevent the introduction, transmission, or spread of communicable disease. But, in essence, the court said, no, the CDC does not have this authority. No, the CDC does not have this authority. So this was a serious consideration on the part of the White House. Did they want to let this stand and run the risk that it would become the law of the land? It was very possible that if the White House took no action, then this was an existing federal court ruling and other courts might look to it to guide their own decisions. court upheld this ruling, an appeals court upheld it, or even the Supreme Court upheld it, which could well happen given that the 11th Circuit Court of Appeals, the court that oversees the judge who issued this ruling, has a lot of Trump appointees. And we know that the Supreme Court now has a conservative majority, six to three. So if this ruling is upheld on appeal and upheld by the

Supreme Court, then it definitely curbs the CDC's authority in the future. So either way, there were risks. There's risk whether you appeal or don't appeal. That's right. There were, you might say, you know, no good decisions here. Damned if they do and damned if they don't. So what does the White House decide to do? So this is a very sort of clever approach that they took. Ordinarily, if you appeal a court's ruling, you would ask for the appeals court to issue a stay, to hold that ruling in abeyance, to set it aside until the appeal is settled. In other words, to allow the mandate to come back.

Yes, exactly. But the Biden administration doesn't do that. So what they do is they appeal the ruling and they say, we're going to challenge this in court, but they don't ask for a stay. And that means that they are abandoning this mask mandate. This mask mandate is over and done with. And how do you interpret that decision? I think it was a very Solomonic decision in a way. They kind of split the baby, if you will. It was smart.

You know, they appealed. will. It was smart. You know, they appealed. So they sort of drew a red line and said, look, we don't want this federal judge to set policy for the whole country. We want to protect the CDC's authority as a regulatory agency. But they decided to let slide the mask mandate itself, thereby eliminating the risk of another big public uproar over this very controversial policy. So they're fighting for the principle. They're playing a long game here, is how I would say it. Right. They're not worried about losing the battle,

which in this case would be survival of the mask mandate. They're more worried about losing the battle, which in this case would be survival of the mask mandate. They're more worried about losing the war, which is the long-term authority of the CDC to protect Americans in a public health crisis. That's exactly right. In fact, that's how I've said it to colleagues, that they didn't want to win the battle and lose the war. So they abandoned the battle and focused on the war. lose the war. So they abandoned the battle and focused on the war. Cheryl, how good is the Biden administration's legal case here? Do they feel confident that they can win this larger legal argument that will preserve the authority of the CDC, the war, as it were? Because the stakes of this are now very high. So I think they do feel confident. One of the people that they have consulted, a public health law professor at Georgetown University, Larry Gostin, told me that they do have an extraordinarily good case on appeal. respect to the word sanitation. And many legal experts, including Gostin, found that to be a very narrow interpretation that really fundamentally misunderstood the scope of the CDC's authority under the Public Health Services Act. But there's another part of the judge's ruling that maybe hasn't gotten as much public attention or doesn't go to the core of the CDC's responsibilities, but something legal experts are seizing on.

And that is that the judge faulted the CDC for failing to solicit public comment on the mask order, saying that they violated this Administrative Procedures Act that requires public comment for most federal actions. Okay. And legal experts say that in an emergency, federal agencies are exempt from that requirement and that this pandemic most certainly qualified for an exemption. So they feel that that's another good ground for appeal. Got it. So they believe pretty firmly that they will win a case that overturns this judge's finding that the CDC exceeded its authority.

this judge's finding that the CDC exceeded its authority. I'm not sure I would go that far, but I think that they believe this is a risk worth taking and that it's a risk that they have to take. And so they are going to do everything they can to set this judge's ruling aside. What's fascinating about this entire case, Cheryl, is that when this ruling was made, I think it's safe to say we all thought it was a very big deal because it rewrote the rules for traveling in the middle of a pandemic.

It suddenly meant lots of people might not be wearing masks, and that felt like a big deal. But the reality is that its implications are much, much bigger than that, because it may end up rewriting the powers of the federal government itself in any future public health crisis. Yeah, that's exactly right. I mean, it rewrote the rules of this pandemic, but we don't know what's coming in the weeks and months and years ahead. We've already seen how many Americans have died from COVID-19 with the protections that the CDC has put in place. Imagine a similar virus with a CDC operating with its hands tied behind its back.

Well, Cheryl, thank you very much. Thank you, Michael. We'll be right back. Here's what else you need to know today. After initially resisting his offer, Twitter has agreed to sell itself to Elon Musk, the CEO of Tesla and the world's richest man, for about $44 billion. The sale puts control of Twitter

in the hands of a frequent Twitter critic. Musk has complained that Twitter's efforts at moderating content has veered towards censorship, leading Twitter employees to ask whether Musk would reverse decisions like Twitter's permanent ban on Donald Trump for inciting violence on January 6th. And...

We want to see Russia weakened to the degree that it can't do the kinds of things that it has done in invading Ukraine. On Monday, during a visit to Poland, the U.S. Secretary of Defense Lloyd Austin Monday, during a visit to Poland, the U.S. Secretary of Defense Lloyd Austin toughened his message toward Russia, saying America's aim was not just to end the Russian invasion of Ukraine, but to degrade Russia's military capability so it could no longer carry out such missions in the future. Standing next to Austin, Secretary of State Antony Blinken said that the U.S. expected to quickly reopen its embassy in Kyiv, which was closed in the days before the invasion.

A signal that the U.S. thinks Russia is on the way toward losing the war. We're seeing that when it comes to Russia's war aims, Russia is failing, Ukraine is succeeding. Today's episode was produced by Stella Tan and Eric Krupke and was edited by M.J. Davis-Lynn and Rachel Quester. It contains original music by Brad Fisher, Dan Powell, and Marion Lozano and was engineered by Chris Wood. Our theme music is by Jim Brunberg and Ben Lansford of Wonderly. That's it for The Daily. I'm Michael Barbaro. See you tomorrow.