Biden’s White House lets Trump’s judge set mask policy for travelers | CNN Politics


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Here’s my weird story about the dropping of the federal mask rule for public transportation:

In flight when the news hit. I saw CNN’s alert that the mask rule was ending just after my flight landed at Washington’s Dulles airport. Masking on the flight had felt arbitrary after living life for weeks mostly unmasked.

My flight was a smidge too early to feature pilots and flight attendants announcing the surprise end to the masking rule and taking off their masks, as seen in videos posted to social media.

Covid positive. I took a Covid-19 test Tuesday morning after learning of a close contact who had tested positive. I tested positive and so did most of my family. I was probably already positive and contagious while in close quarters on the plane. So I’m glad I was wearing a mask in those final minutes of the rule.

This may be the story of the country right now, as fewer people mask up and Covid-19 infections begin to rise again.

Judges making rules. This is the strange way the US government works, or doesn’t, at the moment.

In the absence of leadership or action from the White House and the US Centers for Disease Control and Prevention, Judge Kathryn Kimball Mizelle – who used to work in the Trump administration before then-President Donald Trump appointed her to the bench – is making federal policy for the country as the Biden administration sits by. After extending the mask rule last week, the administration did not immediately appeal Mizelle’s ruling this week.

The Department of Justice indicated Tuesday that it would appeal to revive the mask requirement – if the CDC determines it’s still needed.

It’s usually conservatives warning about judicial activism, but in this case, the partisan arguments about judges making policy are turned on their heads.

Bottom line: The federal rule for wearing masks on public transportation has not ended because of a long discourse about whether masks work and whether the Covid-19 pandemic has reached the point where they’re no longer necessary to save lives.

What does ‘sanitation’ mean to you? The mask rule has instead ended after a legal ruling with no mention of science, but a long and frankly silly meditation about what US lawmakers in the 1940s meant by the word “sanitation.” Read the ruling here.

Now, what’s driving the rules for every American who may have anxiety about getting Covid-19 on an airplane is the lawsuit brought by a non-profit group that challenges pandemic restrictions and was joined by two women who felt anxiety at having to wear masks on flights.

Mask detention. What the judge argued is that the CDC’s mask requirement for planes amounted to a form of jail for those who didn’t want to mask up.

“Their freedom of movement is curtailed in a way similar to detention and quarantine,” she wrote.

May be the right thing. What’s most incredible in this backward variation of policymaking is that ending the mask requirement, at least for now, is not concerning some public health experts.

While there is a noticeable uptick in Covid-19 infections in many parts of the country, hospitalizations and deaths have not begun to follow suit, largely due to growing immunity in the population thanks to vaccination and previous infection.

“I’m less worried about what’s happening now,” Dr. Leana Wen, a CNN medical analyst and public health professor at the George Washington University, told CNN’s John King on Tuesday.

She said what’s concerning is if the CDC has now lost the power to require masks. It’s an open question, because Mizelle ruled that the CDC had overstepped its authority in the first place.

“I’m worried about what could happen in the future,” Wen said. “What if there’s a new variant that evades existing immunity? What if our hospitals get threatened at the point of being strained again? I want the CDC to have the authority at that point to say that masks have to come back.”

Wen said people worried about the disease or at risk of serious Covid-19 infection should still wear masks.

Who is this judge setting health policy for the country? Mizelle, nominated to her lifetime position in 2020 at the age of 33, was rated “not qualified” by the American Bar Association because she had little experience. She had worked in the Trump administration in the Department of Justice and clerked for Supreme Court Justice Clarence Thomas.

Her connections to the Trump administration extend to her husband, Chad Mizelle, who worked in the Trump White House before taking a top position at the Department of Homeland Security. She was confirmed along a party-line vote weeks after Joe Biden won the election – in the lame-duck period before he assumed power and as Trump was disputing the election results.

Letting it go. Neither Mizelle nor her past is the real government conundrum here. The White House could have immediately fought this in court, but as it weighed options Tuesday, masks were optional on many US planes. Congress could change the law, but not much can get through the US Senate.

There was not immediately any effort to lead in either of those directions.

In other words, the Democrats who are running the government are allowing this to happen, either because they think the science makes sense or because they lack the political will to change things.

Mask confusion. Masks have long been a flashpoint in public discussions over Covid-19 – when to wear them, when to take them off and what kind should be worn.

The CDC has come under criticism both for being too quick to update guidance in 2021 before the deadly Delta variant struck and for being slow to update guidance this year, particularly for schools.

In March the Transportation Security Administration had announced plans to keep the mask requirement, even after the CDC updated mask guidance and its interpretation of Covid-19 metrics in February to allow most Americans to take masks off. Those plans appear to have been abandoned after the ruling.

The public is split. CNN’s Ariel Edwards-Levy notes this:

In a March 15-22 poll from the Kaiser Family Foundation, US adults were split on the federal mandate requiring people to wear masks on airplanes, trains and other public transportation. About half, 51%, said the government should let the mandate expire after April 18 (as it was originally set to do), while another 48% wanted to see the mask mandate for travel extended.

March seems like a long time ago. I will add here that hospitalizations and deaths were on the downswing, but an average of more than 1,200 people were dying from Covid-19 each day when that poll was conducted. The average daily death rate as of Tuesday is 425 per day, according to data from Johns Hopkins University. It’s impossible to know if those answers would be different if the question were asked today, but it is certainly true the Covid-19 situation is different.

Fewer wearing masks. Edwards-Levy also sent along April polling from Axios-Ipsos that suggests less than half the country – 44% – wear a mask at least sometimes when they leave the house, a significant drop from the beginning of the year, when 73% of Americans said they wore a mask at least sometimes.

Majorities still see value in masks. Fifty-nine percent of Americans in the March Kaiser poll said people should wear masks in crowded public places, and 71% of Americans in the April Axios-Ipsos poll say they’d be at least somewhat likely to wear masks outside their homes if Covid-19 cases do rise in their areas.

Quoted from Various Sources

Published for: The Bloggers Briefing