April 21, 2022 1:08 pm ET
Mass transit riders wear masks as they commute in New York, April 19.
Photo:
John Minchillo/Associated Press
If you think mask mandates still have anything to do with public health, the Biden administration’s actions this week should disabuse you of that notion. On Monday, Judge
Kathryn Kimball Mizelle
vacated the Centers for Disease Control and Prevention’s regulation requiring masks in planes, airports and other transportation carriers and hubs. On Tuesday, the Journal reports, the department said it would appeal the ruling “only if the CDC found such an order necessary.” On Wednesday the CDC said it was, and the department filed a notice of appeal.
This maneuvering was nonsensical as a matter of law. Judge Mizelle’s ruling noted that the Public Health Services Act authorizes the CDC to order certain types of measures that “ ‘in [its] judgment are necessary’ to prevent the spread of communicable disease.” The government characterized the mask mandate as a “sanitation” measure. She held that it didn’t fit the definition of “sanitation” (or any other type of measure authorized by the statute), and therefore was illegitimate.
The department’s lawyers will argue on appeal that she got the definition wrong and the mask mandate qualifies as a sanitation measure. A higher court may agree. But the CDC had already determined that the mandate was necessary to…