Judge Rules: No More Masks on Planes

Yesterday, a District Court Judge in Florida ruled that the Center for Disease Control and Prevention (CDC), which previously issued a national mask mandate, exceeded its authority by continuing to require this mask mandate on public transit, including airplanes. Even though the Biden Administration had extended the mask mandate on airlines to May 3rd, following the District Judge’s ruling, major airlines and the Transportation Security Administration (TSA) started lifting the mandate as well.

In the opinion, Judge Kathryn Kimball Mizelle wrote:

“It is indisputable that the public has a strong interest in combating the spread of [COVID-19].” Ala. Ass’n of Realtors, 141 S. Ct. at 2490. In pursuit of that end, the CDC issued the Mask Mandate. But the Mandate exceeded the CDC’s statutory authority, improperly invoked the good cause exception to notice and comment rulemaking, and failed to adequately explain its decisions. Because “our system does not permit agencies to act unlawfully even in pursuit of desirable ends,” id., the Court declares unlawful and vacates the Mask Mandate.

When the opinion states that the CDC does not have authority, it appears to our legal team that it is referring to the policies regarding sanitation and keeping property items clean, as the mask itself is not a cleaning device. The opinion also rests on the fact that the CDC tried to do this as an emergency action and go around the Administrative Procedures Act, and this Judge ruled that they do not have the proper authority.

Around the same time, this ruling was announced, the number of border crossings for March of 2022 were also released. In a filing by U.S. Customs and Border Protection, the Department of Homeland Security reported that migrant encounters in March total topped 221,303 – which is 28% higher than March of 2021.

Yet, even with the highest number of migrant crossings in a month under the Biden Administration, this Administration is still planning to drop Title 42. ACLJ Director of Government Affairs Thann Bennett pointed out the hypocrisy of abandoning this policy that allowed border patrol agents to turn back migrants at the border in the event they could bring COVID-19 into the U.S., and still argue to keep masks for Americans on airlines:

Even at yesterday’s press conference, Jen Psaki said that the ruling was disappointing. Well, if it’s disappointing, are they going to appeal that? Are they going to appeal that because the pandemic is still raging, and so they need this mandate? If they do that, how in the world are they going to turn around and say we are also going to continue to abandon Title 42 because there is no pandemic. . . . There is just not a consistency in this policy. I’ll tell you, this is not about the pandemic anymore. This is about a narrative, and this is about appealing to certain demographics within their voter base. It is not based on the science. It’s going to have to be one direction or the other. But right now, that’s not where they are at.

Thann added how this border crisis is not going to go away:

To say there is still a record number surging at the border and that there is still a crisis at our border I think would be an understatement. It is just going to compound if the track that we are on right now continues. . . . The current plan is to walk away from Title 42 removals which accounted for almost 100,000 over that stretch. You’re talking about numbers that we have never ever seen before. We’re talking about intentionally not enforcing, intentionally not removing. Then we are going to layer on top of that laying down an authority that exists in statute for removals at the border. We have a mounting crisis, and it is heading in only one direction. If anyone thinks it is going away without a change in policy, these numbers should really concern you.

We’ve already filed a FOIA lawsuit against the Biden Administration over its refusal to address the influx of migrants at our southern border, and we will continue to hold this Administration accountable for the crisis at our border.

Today’s full Sekulow broadcast is complete with even further in-depth analysis of the new ruling to remove mask mandates on planes and the recent border encounter numbers.

Watch the full broadcast below: