On Monday, a Florida judge declared the mandate unlawful.
I’m Isaac Saul, and this is Tangle: an independent, ad-free, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum on the news of the day — then “my take.”
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This is a longer Tangle than usual, but it's a really, really important issue. So we tried to be very thorough.
- The Education Department announced a slate of student debt reforms that will allow millions of borrowers to reduce or wipe out debt after making payments for 20 or 25 years. (The new rules)
- Florida Gov. Ron DeSantis said the state is considering terminating the special status of the municipal district that is operated by Walt Disney Co. (The decision)
- Russian troops captured the Ukrainian city of Kreminna, one of the first victories in its new offensive in Donbas. (The capture)
- More than 5 million people have now fled Ukraine, according to the latest United Nations estimate. (The numbers)
- Existing home sales fell in March while house prices hit record highs, despite an increase in supply. (The prices)
Our 'Quick Hits' section is created in partnership with Ground News, a website and app that rates the bias of news coverage and news outlets.
Mask mandates. On Monday, Florida federal Judge Kathryn Kimball Mizelle declared the Biden administration's Covid-19 mask mandate for public transportation unlawful. The ruling ended the federal requirement that travelers in the U.S. wear masks on airplanes, taxis, buses, trains or other mass transit.
In her 59-page ruling, Mizelle, who was appointed by former President Donald Trump, said the CDC failed to justify its decision and did not follow proper rulemaking procedures, the Associated Press reported. She also argued that “a limited remedy would be no remedy at all” in justifying the nationwide injunction, employing a sweeping judicial order, as has become more common in recent decades.
In the immediate aftermath of the ruling, the Biden administration said it was unsure how it would proceed, but conceded the mandate was no longer in effect. On Tuesday, the Justice Department said it would challenge the ruling, though it did not ask the court to stay the decision. That means, for now, federal public transportation mask mandates are no longer in place while the decision is litigated. The Transportation Security Administration (TSA) said it would stop enforcing masks at airports. Four of the largest U.S. airlines immediately announced that masking was now optional; some made the announcement mid-flight, drawing both cheers and criticism from those aboard. Uber and Lyft made masks optional for drivers and riders. Other entities, like the New York City government, said it planned to keep mask mandates in place for its public transit systems.
National mask mandates have been in place for over a year, with travelers two years old and above required to wear them on nearly every kind of public transportation. It has also become a hot button issue: The percentage of flight attendants reporting unruly passengers on planes has spiked dramatically, and as cases across the country have fallen and state regulations relaxed over the last couple months, many pundits have criticized the Biden administration for continuing to extend the mandate. The public transportation mask mandate was set to expire on Monday; the CDC had extended the mandate until May 3.
The public health law used to institute the mandate gives the CDC regulatory authority to “make and enforce such regulations as in [its] judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession.” It cites actions the CDC can take, like “inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings” and “other measures” the CDC determines “may be necessary.”
Judge Mizelle said the power was far more limited than the CDC had understood it to be. “If Congress intended this definition, the power bestowed on the C.D.C. would be breathtaking,” she wrote. “And it certainly would not be limited to modest measures of ‘sanitation’ like masks.” She said the logical implication would be that the CDC could require businesses to install air filtration systems, mandate vaccines or require “coughing into elbows and daily multivitamins.”
In the United States, new Covid-19 cases are up 47% over the last 14 days due to the spread of the Omicron B.A.2 variant, with 50,453 new cases reported on April 19. That is still well below where new case counts were two months ago, when we were averaging over 100,000 new cases a day, or this January, when we averaged over 800,000 new cases per day. Hospitalizations and deaths are down 4% and 32% respectively over the last 14 days as well, though both have consistently been trailing indicators throughout the pandemic.
Below, we'll take a look at some reactions from the left and right, then my take.
What the left is saying.
- The left is mostly opposed to the decision, arguing the legal justification is poor and the public health risks are high.
- Some say there will be a disastrous impact for the poor, immunocompromised and elderly.
- However, others say this is a "gift" for Democrats and it might be worth embracing.
In Vox, Ian Millhiser criticized the legal justification.
"Mizelle’s opinion in Health Freedom Defense Fund v. Biden, the case striking down the masking requirement, is so poorly reasoned that it is difficult not to suspect that it was written in bad faith," Millhiser writes. "This law is broadly worded, and it specifically gives the CDC the power to enact 'sanitation' regulations that protect public health. Mizelle gets around the law’s broad wording largely by defining the word 'sanitation' very narrowly and misreading other portions of the statute. Mizelle begins her analysis by arguing that this list of examples limits the CDC’s authority to make regulations — an assumption that, in fairness, is grounded in the Supreme Court’s interpretation of the statute. Thus, according to Mizelle, if the law authorizes the masking requirement, 'the power to do so [must] be found in one of the actions enumerated' in the statute’s list of examples.
"The masking rule must be a regulation providing for 'inspection, fumigation, disinfection, sanitation,' or something similar. But that shouldn’t be a problem. The word 'sanitation' appears right there in the statute, and the masking requirement is a classic sanitation regulation. Its whole purpose is to prevent passengers from spewing a dangerous contaminant into the air that can infect other passengers. And, as Mizelle admits in her opinion, dictionary definitions of the word 'sanitation' include 'measures that keep something clean.' She even quotes dictionaries that provide definitions such as 'the use of sanitary measures to preserve health.' Nevertheless, Mizelle refuses to give the word 'sanitation' its ordinary meaning, instead claiming that this word’s meaning must be limited 'to measures that clean something, not ones that keep something clean.'"
In CNN, Jill Filipovic said she hates wearing masks, but is "appalled" they are no longer required for air travel and public transit.
"This decision is particularly disastrous for older adults, the ill and the immunocompromised, who still face a much higher chance of being hospitalized or even dying if they contract Covid-19 (so do the voluntarily unvaccinated, but they've made the decision to assume that risk for themselves). For most people, going to work or the grocery store is not optional, and many people need to take public transport to get there," Filipovic wrote. "Forcing those who have done everything right except had the bad luck to be sick or old to assume the risk of contracting a potentially fatal illness, just so that people who find masks uncomfortable -- myself among them -- don't have to take basic precautions, is an appalling level of disregard for the lives and well-being of our fellow human beings.
"Covid-19 is also a class-based killer: Lower-income Americans are more likely to die of it than wealthier ones. On airplanes, where the cost of tickets makes regular air travel inaccessible to low-income people, the air is cycled out quickly, reducing the risk of Covid-19 infection. That's not the case for the types of public transport that are more readily available to the masses: buses, trains, subways. Mizelle, it should be noted, was the youngest judge appointed by former President Donald Trump -- she was 33 when he appointed her to sit on the federal bench for life. A majority of the American Bar Association's Standing Committee on the Federal Judiciary rated her as 'not qualified' for the role, given that she had never tried a single federal case and had only been a practicing lawyer for a few years. Mizelle, the majority of the committee wrote, did 'not meet the requisite minimum standard of experience necessary to perform the responsibilities required by the high office of a federal trial judge.'"
Matthew Yglesias said the ruling was a "gift" for Democrats.
"This lingering non-pharmaceutical intervention, at a time when mask rules have been dropped in virtually every other context (including in the U.S. Capitol Building) has become an embarrassment at a time when the country has otherwise moved on from so-called NPIs," Yglesias said. "The basic problem is that the rule itself was issued by the Centers for Disease Control and Prevention, which is a scientific agency — and a conservative one at that. CDC guidelines suggest, for example, that nobody should eat rare steak or runny eggs, and that a woman should not have more than one alcoholic drink a day.
"The science behind those calls may be sound," he added. "But they are sharply at odds with the habits and values of huge numbers of Americans. Fortunately, they do not have the force of law. Alcohol regulations are made by state legislatures, which ideally will be guided but not controlled by science as they make laws about public health. By the same token, a rational assessment of U.S. society would conclude there’s no reason for a government-enforced mask mandate in airports when there isn’t one at hockey arenas. The only reason for it was that airports are regulated by the federal government rather than the states, and the federal government’s regulatory authority rested with the CDC rather than a more political agency such as the Department of Transportation. In reality the White House should have put its foot down and lifted the rule weeks ago."
What the right is saying.
- The right says Judge Mizelle had strong legal grounds to strike down the rule.
- They argue that it is time for mandates to end, given where the pandemic is.
- Many say there are enough non-mask mitigation efforts to rely on now.
In Powerline Blog, John Hinderaker said Judge Mizelle had strong legal reasoning to strike down the mandate.
"Judge Mizelle relied on three independent grounds in invalidating the mandate," Hinderaker wrote. "First, she found that it exceeded the statutory authority that Congress has delegated to CDC under the 1944 Public Health Services Act, 42 U.S.C. § 246(a)... Judge Mizelle engaged in a close analysis of the text of the relevant provisions and of the meaning of the word 'sanitation' in context to conclude that the mask requirement is not 'sanitation' within the meaning of the statute... The idea that the Mask Mandate constitutes 'sanitation' within the meaning of the 1944 act (which in the same sentence confers on CDC powers of 'inspection, fumigation, disinfection…pest extermination' and 'destruction of animals') strikes me as farfetched.
"Her second ground for invalidating the mask mandate is that it is a rule that was adopted without the required public notice and comment period," he added. "In this case, the CDC simply recited the statutory standard in conclusory form without making any showing that notice and comment would, in fact, be 'impracticable, unnecessary, or contrary to the public interest.' The court understandably found this to be inadequate... Finally, Judge Mizelle found that the Mask Mandate was arbitrary and capricious because the CDC articulated no rationale for the agency’s rejection, or failure to consider, alternative measures, or for its system of exceptions. Judge Mizelle said that she considers this the closest of the three grounds on which she found the Mask Mandate improper, an assessment that seems correct."
Megan McArdle said it is time for mask mandates to go.
"I suspect some in the Biden administration have come to the same conclusion that much of the country has reached: It is time for indoor mask mandates to end. They had to end sometime, after all, and if not now, when?... 'When people stop dying!' says a voice from the back. But that ceased to be a workable answer last summer when it became clear that the vaccines were not providing the sterilizing immunity that might have allowed us to eliminate the virus, the way we have done with smallpox and polio," McArdle wrote. "Anything short of that requires us to figure out how to live with a virus that will continue to circulate. And by 'live,' I mean full, normal lives, not the severely restricted public activities of the past couple of years.
"Such measures were acceptable as temporary delaying tactics to keep hospitals from being overwhelmed," she wrote. "They bought doctors time to figure out how to treat the virus and gave scientists the precious months they needed to develop vaccines and treatments. Before those vaccines and treatments arrived, I was a strong advocate of stringent social distancing, and once the vaccines became available, I supported making them mandatory. Liberty is precious, but it does not include the right to spread deadly viruses to other people. But now that we have vaccines and treatments, it’s time to reconsider the trade-offs we made. Policies that were appropriate when the infection fatality rate was 1 in 200 do not necessarily pass a cost-benefit test after vaccines and treatments have reduced those risks 20-fold, especially since further improvements will likely be somewhat slower and less dramatic."
The Washington Examiner editorial board said the public health laws are being applied inconsistently and illogically.
"If you are a migrant arrested while illegally crossing the southern border, our nation’s COVID emergency will be over May 23. But if you borrowed money to pay for college, then the COVID emergency is still on at least through August and almost assuredly through Election Day. And if you are a Democrat in Congress, the COVID emergency conveniently ended the weekend before President Joe Biden’s State of the Union address," the board wrote. "Confusing? Absolutely. Is there some scientific evidence that can harmonize all these decisions? Absolutely not... The official reason the CDC gave for extending the travel mask mandate yet again was that it needed more time to study the new BA.2 omicron subvariant, which is now responsible for the vast majority of cases in the United States.
"But if the past two years have taught us anything, it is that there will always be a new COVID variant to study," the board wrote. "If the CDC is going to commit to keeping the travel mask mandates until every new COVID variant is fully studied, then it will never end. Other countries around the world, such as Denmark and England, have lifted their air travel mask mandates. There is no evidence of a resulting COVID surge. What little science there is on the subject shows that airborne disease transmission is not more likely on an airplane than it is indoors, where the CDC has already said masks are no longer needed. If anything, with all the fresh air brought into planes and all the filtering of recycled air, a plane is safer than the average building. The CDC has never presented any evidence to show that planes are riskier than an ordinary office building or restaurant.”
As with most decisions related to Covid, anyone telling you this is easy or obvious is selling snake oil. There's so much truth in all the arguments above that I personally feel conflicted about the whole thing.
The legal arguments over the CDC's authority have been heard often since the beginning of the pandemic. I'm reluctant to re-hash them again here, as we've done so several times already. The variance in how the Supreme Court, this Florida judge, the CDC, the Biden administration, and a slew of other federal justices view the CDC's authority on masks and vaccines is basically proof that any strong legal mind can bend the rules to suit their whims. Yes, the 33-year-old Judge Mizelle was described as "unqualified" by the majority of the American Bar Association's Standing Committee on the Federal Judiciary because she had never tried a federal case. But she also clerked for Clarence Thomas and was described by the same ABA as having “a very keen intellect, a strong work ethic and an impressive resume." And ultimately, Judge Mizelle’s personal experience doesn’t affect the strength of her argument.
I don't mean to just throw my hands in the air, but there is a good argument Judge Mizelle is bending the law to fit her political beliefs and a good argument the CDC was acting without statutory authorization, and a lot of people with more legal expertise than I have to decide who is right. I've said before I think the CDC is exercising broader power than it possesses, though federal jurisdictions like airports would be a place where it gets to exercise that power. What would be truly helpful from the CDC are guidelines and benchmarks to give states and municipalities clarity and tracking compliance, and journalists better information on who was or wasn’t following the guidelines.
Still, the argument that an activist judge is "undermining democracy" or the CDC's authority with this ruling is not convincing. The Senate — a body of elected officials — voted 57-40 last month to overturn the transportation mandates. Nancy Pelosi is refusing to take that bill up in the House, knowing it would probably divide her caucus and ultimately pass. That’s more “undemocratic” than what Judge Mizelle did. Among the public, according to the most recent polling, 64% of all Americans support “federal, state, and local government lifting all COVID-19 restrictions.”
Putting the legal or political framing aside, I'd rather address the (not so) simple question: Is it time to end mandates on public transportation?
It seems necessary to first just note that these decisions should not be made lightly. Covid-19 has killed approximately one million Americans and six million people globally in the last two years. Case rates in the United States have plummeted in the last few months since the all-time high in January, but have ticked up again in the last few weeks.
On the whole, I think it is fair to say we are in a pretty good place with Covid-19 headed into the summer. Vaccination rates are high, natural immunity has spread, and case rates, hospitalizations and deaths are still relatively low. We know summer is good for reducing spread. The pandemic looks to be waning. Here is how it looks from The New York Times’ (still very useful) Covid-19 tracker:
As I've said since vaccines became widely available, I do not think national mask mandates were a good idea. My opinion has been that mask mandates should be instituted at the state or local level according to case counts. One of the great failures of public health agencies from the start of the pandemic has been that Covid-19 measures were rarely tied to actual goal-oriented data. Without benchmarks about where the country, states or counties needed to be to move past Covid-19, we’ve had nothing but confusion and uncertainty.
Under the older, more cautious guidelines, the CDC issued guidance that anyone living in substantial or high transmission areas should wear masks indoors. Today, that would account for about 29% of all counties, meaning that it’s safe to be maskless indoors in 71% of American counties, even by those stringent CDC recommendations. In March, the CDC changed those guidelines to hinge on hospital admissions and hospital bed availability. Only counties of high risk are told to require masks indoors. Today, that is 0.43% of all American counties. Yet the federal mandate remains in place.
We are clearly not in peak pandemic anymore — but we aren’t out of the woods yet, either. In their recent weekly influenza report, the CDC shared metrics indicating that the United States is just on the cusp of pneumonia, influenza, and Covid-19 mortality dropping below the epidemic threshold.
This transitional period has made it very unclear when Covid-19 policies are appropriate. As The Washington Examiner editorial board helpfully pointed out, pandemic rules are being applied unevenly. Masking mandates have largely ended in schools, restaurants, concert halls, gyms and other indoor arenas, but still exist in planes, trains and cars. The Covid-19 justification for instituting Title 42 on the border is ending, but it's staying in place to continue to pause student loan payments. You need a mask on a plane, but not in the halls of Congress. When the government indiscriminately chooses when or where we're in a pandemic and when or where we're not, it effectively destroys what little trust the public has left in the government’s decision making. And that is a huge deal given that public trust is what underpins the authority of agencies like the CDC.
Based on everything we know, I think it is backward to have mask mandates on flights but not in other indoor spaces. It seems to me the best policy would be to drop the mandate and allow airlines to decide their own policies. If there were demand for it, flights could even offer bookings with fully masked travelers. For folks who are immunocompromised or elderly, we now know that one-way masking works (if you’re both vaccinated and wearing a quality mask). Planes are very well ventilated. Covid-19 treatments are widely available. Most of the country has gotten vaccinated or gotten Covid-19, or both.
And, amidst all that, in my recent flying experience, most people are regularly removing their masks to eat or drink, or just out of discomfort. Given the quality of masks being worn and the actual practices happening on planes, I'm not sure how much good the mandate has done anyway.
There may very well be consequences for this change: In Europe, where masking has ended for some airlines, staff shortages and Covid-19 spread has caused increased chaos and cancellations in airports. Americans may soon find our already over-priced, delayed and regularly canceled flights even more frustrating if staff begin to get Covid-19 at higher rates and have to call out of work. There is a definite “reap what you sow” outcome here that opponents of the mandate may soon run into.
It's also true that airlines handled this announcement poorly. When the judge dropped the mask mandate, the appropriate move would have been to lift it on airlines in two or three weeks — not midflight — that way people could have made better informed risk assessments, and rescheduled or changed their plans based on the new environment. The fact that high-risk folks were caught by rule changes in the middle of travel is deeply frustrating and unfair.
Busses, cabs, and subways seem harder to navigate. In Ubers or taxis, you can put the windows down and will not typically be sharing the space with strangers; most drivers now have partitions installed but should still have the autonomy to decide whether their passengers mask up. Ventilation on subways and busses varies more widely than planes, but most are operating within state boundaries — so states should be allowed to decide what mandates to use, based on local case counts (and, ideally, reasonable and transparent federal benchmarks).
All together, while I have reservations, I think it's time to end a federal mandate like this one. I may still wear my mask to fly or take a subway, and I'd respect anyone else who decides to do the same. But given the sum total of today's vaccine rates, natural immunity rates, available treatments, lower case counts and pulled back masking requirements in other indoor spaces, it seems both safe to end the public transportation mandate and inconsistent to keep it in place.
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A story that matters.
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- 95%. The percentage of Americans aged 65 and up who have at least one dose of the Covid-19 vaccine.
- 90%. The percentage of Americans aged 65 and up who are fully vaccinated.
- 80,526,422. The total number of Covid-19 cases that have been reported in America all-time.
- 9,416. The number of Americans currently hospitalized with Covid-19, according to the CDC.
- 3,170. The number of patients admitted to the hospital with influenza this week, according to the CDC.
- 410. The average number of people dying of Covid-19 each day over the last 14 days.
Have a nice day.
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