DOJ Files Perfunctory Appeal to Revive Travel Mask Mandate

Yves here. The US is going through the motions of preserving its ability to implement a transportation mask mandate in the future. Even though the DoJ did file an appeal, it did not also seek an emergency stay, which is what you’d expect if you regarded the extension of the mask mandate as important for public health.

As Safety First remarked in comments yesterday:

I remain vaguely floored, though unsurprised, by the fact that this decision is a “thing” at all.

To be sure, I am not a professional attorney, and for whatever reason no-one is inviting me to play one on the telly. That said, I have “lived” through a whole slew of corporate legal spats, especially in a bankruptcy context, and quite literally 99.5% of the time no-one cares about the District Court decision in the slightest, because 99.5% of the time it will be automatically appealed by whichever party is the loser. You always started to pay attention only when the case reached the Appeals Court level, at which point the issue would actually get resolved and the opinions would be worth reading for anything other than entertainment value.

And yet here we have the Biden White House sit there for at least a full day, with Psaki saying we might consider appealing based on a DoJ review (CNBC now claims they WILL appeal, by the way), pretending as if the District Court – whoever happens to be the judge (Gumby!) – actually matters, and then you have a whole mess of press articles on how bad the judge slash decision slash whatever is. I mean, either this is West Wing Brain on full display, and these people have no clue how to do legal cases or how legal precedent works, or they genuinely thought they could let a District Court kill this and then pretend to be utterly helpless to do anything about it…

…but like I said, it looks like an appeal is coming, so we’re back to the 99.5% principle.

I have to go to NYC next week for a procedure that the MD attempted in her office last month, but it turns out I need heavier-duty equipment than she had, so we are now having Attempt 2 as a hospital outpatient. That means I have to fly with no mask mandate. A trusty WSJ table shows I am safe only for 2.5 hours with my trusty N95:

With infections surging due to the Omicron variant, physicians are now urging people to ditch cloth face masks and instead recommend pairing cloth masks with surgical models or moving on to stronger respirator masks— WSJ Health (@WSJhealth) January 6, 2022

So I am going to wear my Darth Vader P100 mask for part of the trip and then the N95 for a max of 2.5 hours. I’d wear the P100 all the way, it’s comfortable for breathing, save for the fact that even the large size pinches my face. I hope it makes everyone very nervous:

By Jessica Corbett. Originally published at Common Dreams

The Biden administration on Wednesday appealed a federal judge’s ruling that struck down a mask mandate for public transportation.

After a Florida-based judge appointed by former President Donald Trump killed the mask mandate on Monday, the U.S. Department of Justice (DOJ) said Tuesday that it would appeal the decision if the Centers for Disease Control and Prevention (CDC) determined the policy was still necessary given the current state of the Covid-19 pandemic.

In the face of mounting pressure from public health experts and advocates, the CDC requested the appeal, saying in a statement that “at this time an order requiring masking in the indoor transportation corridor remains necessary for the public health.”

“CDC will continue to monitor public health conditions to determine whether such an order remains necessary,” the statement continued, adding that the federal agency “believes this is a lawful order, well within CDC’s legal authority to protect public health.”

Citing the CDC’s assessment, Anthony Coley, a DOJ spokesperson, confirmed on Twitter that the department filed a notice of appeal.

Scientist Lucky Tran said that he is “glad the CDC is at least doing the bare minimum and appealing the ridiculous court decision to overturn the transportation mask mandate!”

Groups including People’s CDC—of which Tran is a member—and Marked by Covid had called on the Biden administration to fight the right-wing judge’s ruling.

Marked by Covid noted that Wednesday’s filing does not include a request for an emergency stay that would reimpose the mandate until a decision is made by a higher court.

In addition to announcing the request that DOJ appeal Monday’s ruling, the CDC reiterated Wednesday that it “continues to recommend that people wear masks in all indoor public transportation settings.”

“As we have said before, wearing masks is most beneficial in crowded or poorly ventilated locations, such as the transportation corridor,” the agency added. “When people wear a well-fitting mask or respirator over their nose and mouth in indoor travel or public transportation settings, they protect themselves, and those around them, including those who are immunocompromised or not yet vaccine-eligible, and help keep travel and public transportation safer for everyone.”

White House Press Secretary Jen Psaki told CNN+‘s Chris Wallace Wednesday night that the appeal is important “to ensure the CDC’s authority and ability to put in mandates” for future crises.

“We know there’s going to be ups and downs in this pandemic, we’re all ready for it to be over,” she added. “But we want to ensure that our public health experts are able to take steps, if needed, in the future.”

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  1. johnf

    “So I am going to wear my Darth Vader [PTE] P100 mask for part of the trip…. It’s comfortable for breathing, save for the fact that even the large size pinches my face.”

    You may find a silicone rubber, P100 respirator to be more comfortable. I have worn a Moldex 7000-series silicone half mask (the middle of three sizes, 7004, 7005 and 7006) for 16–18 hours without issue. I steam the mask, afterwards, or bake it and filters at 70°C.

  2. Pat

    Good luck on the trip and on the procedure.

    The Biden administration is barely going through the motions. They were really hoping that they got a get out of jail free card with that ruling and could throw up their hands on the public health front and stop annoying big donors.

    My line about Obama was I knew it was bad when I began to miss Nixon, Biden is making me miss Trump. Sure it might be some slight improvement but in truth the last five Presidents should be on an entrance gate to a monument of Bush 1 and Reagan welcoming the public and directing them to the cliff they are expected to jump off.

    1. Anthony G Stegman

      When was the last time the United States had an effective president? In my lifetime they have all been bad; with some terrible.

      1. Alex Cox

        Lyndon Baines Johnson – excellent on civil rights and domestic policy, disastrous on foreign.

      2. Pat

        It might depend on what they were being effective about. I could make a fairly decent case that Clinton was highly effective, it just wasn’t about the overall health of the country.

        I choose Reagan Bush 1 as my start off point because they began the dismantling of both the press and the system that kept some of the brakes on the government. We may always had to fight the worst instincts, the greed and the grift. But I have watched multiple bulwarks and weapons that supported that fight disappear in the years since.

        Others might choose a different set for the monument at the gates of hell, but this is mine.

      3. drumlin woodchuckles

        But they have been effective at being bad and/or terrible. So what is the complaint?

  3. Roger Blakely

    “Living with the virus” means wearing a respirator in all indoor public spaces. If I’m not at home, I’m wearing a respirator. No church. No gatherings. No restaurants.

  4. The Rev Kev

    Where I live I am one of the few people that still wears a mask in public because the Pandemic is over dontcha know? Even my wife is not bothering any more. So I had to come up with a question/answer format before going out which goes like this-

    Q- Is the Pandemic over?

    A- No.

    Q- What are your chances of surviving this virus if you catch it?

    A- Pretty good actually on average.

    Q- What are your chances of getting permanent damage from this virus each time you get it?

    A- Pretty bad. One in three. Wear the damn mask.

  5. Medbh

    I flew from Florida to the Midwest yesterday. Sold out plane. Out of 186 seats, 2 people (besides me and my kids) were wearing n95 and 7 were wearing surgical masks. In some ways, I thought the people wearing surgical masks were sadder, as they cared enough to buck social pressure to wear a mask, but not the right type for an airborne disease.

    The world is going all in on infection. Nothing will change until covid mutates to a more lethal version that kills lots of people immediately. Disability is not graphic enough, as those folks will be dismissed as fakers.

    1. kareninca

      Oh, a sold out plane. Full of unmasked people Swell.

      Did you have to provide proof of a negative covid test in order to fly???? Is that still a thing?????

      1. Medbh

        Our flight required no proof of testing or vaccination. It’s all back to pre-covid practices.

        Given the number of people wearing masks on the plane, I guess the airlines made a calculation that the customers adamantly opposed to masks are more common or more committed than those wanting to maintain protections.

        1. kareninca

          Thank you for the info. It sounds like it may be airline by airline, flight by flight, or maybe, as you say, it is all back to pre-covid. That is, other than the infection part.

        2. GC54

          Spouse flew Tues pm thru Dallas. Both flights packed, 1/4 masked on 1st from mid Atlantic, 2nd to Az mostly unmasked + some chin diapers. She had N95. Flight attendants were masked (didn’t ask type) on both flights. We are both boosted once in target age group, no COVID so far but have flight N in 3 wks and I coast to coast in June/July. Driving otherwise. Uggh

      2. bluegrapes

        COVID tests or vaccines were never required to fly domestically within the continental US. That is only to return back to US, from another country. Or to enter other countries. fwiw.

  6. Dave in Austin

    I’ll take no position on masks on airplanes yet, but I will note that the airlines retained the right to impose mask requirements. None of them did, which indicates to me that they all decided “We have much more to lose that to gain by imposing mask mandates because the flying public is opposed to them”.

    So the grand experiment begins: will there be an up-tick in infections among people who have flown and if so, will it be the same for all airlines since some (apparently including Southwest) have significantly redesigned onboard air handling systems.

    If we had real public health system as opposed to public relations campaigns for competing narratives, the CDC would ask for a list of passengers with phone numbers and cold-call them two weeks after the flight and ask “Did you get Covid?”. There are various, imperfect, ways to generate a control group of people who didn’t fly (I’d suggest as a non-statistician that the control group be people who purchased tickets on the same day for flights further in the future).

    I’m a flier. I’d like some real evidence.

    1. Sharon Fitzpatrick

      Dr Richard Fleming has some real evidence. I SUGGEST you not share space with anyone who has had the booster within the past twenty four hours.

    2. Jeff

      If we had real health officials, they would have tested if masks are effective at protecting you on a plane. No studies in 2 years? Just another public health failure.

  7. Yan

    Couldn’t other countries require flights inbound from the US to enforce masks? Seems like right now is to also export the virus worldwide.

  8. Anthony G Stegman

    A friend of mine just returned from Europe. He is now recovering from Covid. He told me that mask wearing in Germany where he went was no better than here in the good old US of A. Perhaps there is a genetic defect in Europeans and European ancestry people that makes mask wearing very difficult. My asian neighbors have no issues wearing masks. Sometimes I think they go overboard as they wear masks even while walking outside alone.

  9. kareninca

    I hope your trip and your procedure go well.

    One of the great things about masks is their simplicity. What I am having trouble with understanding is covid testing before domestic flights. I just can’t seem to find out if it is still required, and if so how to get it done and where, and whether you can do it without a smart phone (I don’t own a smart phone). Everything I’m finding on line seems to be out of date. It looks like it may be an airline based thing; I will have to call each airline it seems. I think it is a good idea for people to test before flying, but it is not a clear system; it is a mess.

  10. Kevin Smith MD

    Marian and I put ivermectin 1% cream [eg Soolantra cream, an Rx product in USA for rosacea, seborrheic dermatitis] deeply in our nostrils twice a day, in particular when there is any risk of exposure to Covid. This is very effective against Covid at the very high local concentrations which result from topical application. This, of course, is in addition to wearing our 3M N95 masks.

  11. Lynne

    Oh, for pete’s sakes! I AM an attorney, and spent some years in an administrative agency. The Administrative Procedure Act (and its counterparts on the state level) have very detailed procedures for administrative rule-making. The CDC did not bother to follow them. Unsurprisingly, a court dinged them for it. As a colleague remarked after reading the opinion, “There’s a REASON we tell people to read the APA when they’re doing rules.”

    When Trump was president, his administration also botched rule-making, and I recall much snickering about how incompetent the administration was when the courts predictably threw out those rules.

    Now the shoe is on the other foot, but the result is the same. And, saddest of all, the CDC still hasn’t published any proposed rules for public comment, nor have they (so far as the news reports would have it) bothered to try and come up with the documentation that would meet scrutiny.

    1. Yves Smith Post author

      I conceded in an earlier post that the CDC did not follow the rulemaking process, and mirable dictu, if they had, the rule likely would have come out better, as in requiring higher quality masks. The Administration could have finessed it with an executive order as the CDC (or better yet OSHA) was completing its rulemaking. Early in Covid, most people were willing to go along and so the executive order probably would have survived long enough for the CDC to finish rulemaking.

      Another belt and suspenders approach would have been to get airports in blue cities to impose mandates too.

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