On Tuesday, the Justice Department filed an appeal with the 11th U.S. Circuit Court of Appeals — nine months after a Florida judge struck down the federal mask mandate as an unconstitutional use of executive authority.
In the appeal, the Biden DOJ argued that the Centers for Disease Control and Prevention has the lawful authority to require travelers to wear masks on federally-regulated transports, like planes, trains and buses.
However, the appeals panel seemed to take issue with the DOJ’s argument that the CDC had “good cause” to bypass the proceedings mandated by the Administrative Procedures Act, which includes a set time in which the public can review and comment on an administrative ruling before it is imposed on them. The DOJ dismissed this concern, asking the appeals court to at least make it clear that the CDC has the authority to impose a mask mandate.
“You can imagine the next pandemic, there was an outbreak of measles or SARS and the CDC would want to and need to take swift action in order to control such a pandemic in the future,” the attorney for the Justice Department said. “I think the important thing here is that the potential collateral estoppel effect of the district court’s ruling could tie up future CDC actions.”
In April of last year, U.S. District Judge Kathryn Kimball Mizelle, a Trump appointee, ruled the Biden administration violated the Administrative Procedures Act by failing to properly explain its decision to impose the travel mask mandate or follow proper rulemaking procedures.
“Because ‘our system does not permit agencies to act unlawfully even in the pursuit of desirable ends,’ the court declares unlawful and vacates the mask mandate,” Mizelle wrote in her decision.