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TSA won’t enforce mask mandate for travel, following Florida ruling

The administration said Monday evening that it will stop enforcing the federal mask mandate for travel — for now — after a federal judge in Florida earlier in the day struck down the CDC’s mask requirement for planes and trains, ruling that the agency overstepped its statutory authority.

An administration official said the federal government is still determining how it will respond to the ruling, but that the CDC masking order, which is enforced by the TSA, “is not in effect at this time.” United Airlines, which had earlier Monday said it would keep enforcing the mandate until it received more clarity, on Monday evening said it would no longer enforce the mandate for domestic flights. Airlines have been pressing for some time for the mandate to be removed.

The change was precipitated by a decision reached Monday by Kathryn Kimball Mizelle, a U.S. District Court judge in the Middle District of Florida and a Donald Trump appointee, who ruled in favor of the Health Freedom Defense Fund’s lawsuit against the federal government that was initiated in July 2021.

“It is indisputable that the public has a strong interest in combating the spread of Covid-19,” Mizelle wrote. “In pursuit of that end, the CDC issued the mask mandate. But the mandate exceeded the CDC 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 the pursuit of desirable ends, the court declares unlawful and vacates the mask mandate.”

White House press secretary Jen Psaki called the ruling “disappointing” during a White House briefing. She said the CDC and DHS are “reviewing the decision and of course the Department of Justice would be making any determinations about any litigation.”

An administration official told POLITICO the federal government is “reviewing the decision and assessing potential next steps.” But they clarified that Monday’s ruling means, for now, that masks are not required for by law to board an airplane, train or other form of public transportation subject to the mask mandate.

“Today’s court decision means CDC’s public transportation masking order is not in effect at this time,” the official said. “Therefore, TSA will not enforce its Security Directives and Emergency Amendment requiring mask use on public transportation and transportation hubs at this time. CDC recommends that people continue to wear masks in indoor public transportation settings.”

The CDC declined to comment on the ruling, while HHS did not immediately respond to comment on the ruling. DOJ said it is “reviewing” the decision but declined further comment.

Before the administration said it considered the mask mandate nullified, Sara Nelson, president of the Association of Flight Attendants-CWA, said in a statement that the union is urging “calm and consistency in the airports and on planes.” Nelson said “it takes a minimum of 24-48 hours to implement new procedures and communicate this throughout the entire network” and that announcements and signage must be updated. She reiterated that the law requires passengers to follow crewmember instructions.

“The last thing we need for workers on the frontlines or passengers traveling today is confusion and chaos,” Nelson said. “Traveling can be stressful enough and safety comes first with respect for everyone utilizing collective modes of transportation.”

Florida Gov. Ron DeSantis praised the ruling minutes after it was announced. The state of Florida has sued the federal government over various Covid-related restrictions throughout the pandemic, but Monday’s ruling was based on a lawsuit by the Health Freedom Defense Fund, a nonprofit that has brought legal challenges to Covid restrictions across the country, and two women in Florida who said the mask mandate led to anxiety and medical issues.

“Great to see a federal judge in Florida follow the law and reject the Biden transportation mask mandate,” DeSantis tweeted. “Both airline employees and passengers deserve to have this misery end.”

Last week, the CDC extended the mask mandate for planes, trains and other forms of public transportation until May 3. In the face of increasing opposition from the airline industry as well as Republicans and some Democrats in Congress to continuing the travel mask mandate even as other parts of the country shed their mask requirements, White House officials have repeatedly stressed that any further extension of the mask mandate would be made by the CDC.

Last month, officials said the mandate needed another extension for the CDC to “work with government agencies to help inform a revised policy framework for when, and under what circumstances, masks should be required in the public transportation corridor.” CDC spokesperson Caitlin Shockey said last week that the agency “continues to monitor the spread of the Omicron variant, especially the BA.2 subvariant that now makes up more than 85 percent of U.S. cases.” Given the increase week to week, and to better assess its effect “on severe disease, including hospitalizations and deaths, and health care system capacity, the CDC order will remain in place at this time.”

Delta Air Lines CEO Ed Bastian said Monday, minutes before the ruling was announced, that he wants to see mask mandates ended immediately.

“We’re all hoping coming May 3 the mandate expires and the government puts it on individuals,” Bastian said at a Washington Post Live event. “In other sectors of the economy, there are no masks. It just doesn’t make sense.”

Mizelle was nominated to the federal bench by Trump in August 2020 and was confirmed after Trump’s 2020 election loss by Senate Republicans over objections from Democrats, who asked to suspend judicial nominations in light of then-President-elect Joe Biden’s victory. A majority of the American Bar Association’s standing committee on the federal judiciary rated Mizelle as “not qualified” due to her lack of experience. Mizelle, 35, was a former clerk for Supreme Court Justice Clarence Thomas and is among the youngest federal judges ever confirmed.

Josh Gerstein contributed to this report.

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