Justice Department punts mask ruling appeal to CDC

 

The Biden administration late Tuesday said it will appeal a federal judge’s decision striking down a mask mandate for public transportation if the Centers for Disease Control and Prevention deem the mandate necessary for public health.

The Justice Department’s announcement comes after hours of deliberation, with some Biden administration officials insisting that an appeal is essential to preserve the government’s public health authorities while others argued a fight would have relatively little political benefit or practical effect for the broader Covid response. Detractors also expressed concerns about the fallout if the government were to lose an appeal.

The announcement ultimately leaves next steps in the hands of the CDC, where there have been divides over how to proceed on a mandate that was already set to expire in early May. There is growing consensus among White House and public health officials that an appeal would be impractical, two people with knowledge of the deliberations told POLITICO.

A Health and Human Services Department official told POLITICO “no decision has been made” on whether to appeal.

White House officials pressed the Department of Justice for swift guidance on how to proceed after Monday’s Florida District Court ruling, the two people familiar with the deliberations said. Top administration officials were in meetings throughout Tuesday discussing the viability of a potential appeal, the two said. The White House declined to comment on the deliberations, but press secretary Jen Psaki told reporters that “it typically takes a couple of days to review and make an assessment” of a possible appeal.

Administration officials publicly sent mixed signals throughout the day. President Joe Biden earlier Tuesday appeared ambivalent, indicating that it was “up to” individual people whether they should continue wearing masks. But HHS Secretary Xavier Becerra later told reporters at a Las Vegas, Nev., event that the administration is “likely” to appeal the ruling. The White House and health agency did not respond to requests for comment.

The extended internal debate underscored the complexity of the pandemic challenge the administration is trying to navigate, as it balances the political risks of maintaining a mandate and the public health risks of lifting it.

Privately, Biden officials are cautiously optimistic about coronavirus trends: Despite roughly 35,000 new cases a day, up 40 percent from earlier in the month, hospitalizations have remained flat in that period, according to the CDC. The agency, in a statement, did not specifically address whether the mandate was necessary for public health. Instead, it said that it “continues to recommend that people wear masks in all indoor public transportation settings.”

Officials are still worried about the fallout if the 11th Circuit Court of Appeals, which has jurisdiction over Florida, upholds the ruling. That could prove a politically embarrassing loss and set a precedent that could hamstring future public health crisis response efforts, one of the people with knowledge of the matter said.

The appeals court is made up of a majority of judges appointed by Republican presidents, including six installed by former President Donald Trump, and it’s unclear which three of those judges would hear the legal challenge.

“The real central issue here is the [judge’s] statement that this is not within CDC’s authority, which is not true,” said Georges Benjamin, executive director of the American Public Health Association. “If there’s a way to legally challenge it such that it makes it clear that this is clearly within the authority of the CDC, then I think the federal government should pursue that.”

There is anxiety within the administration over whether whittled-down mitigation measures are premature in the face of new subvariants and several case surges, including one among Washington, D.C., elites, according to conversations with four Biden officials and people familiar with the internal deliberations.

“There’s no question we’re at a crossroads,” said one senior administration official granted anonymity to speak freely on internal deliberations. The official added the White House is keen to see whether current case surges will translate to a hospitalization surge in a matter of two to four weeks. “No one knows yet whether hospitalizations are going to rise, that’s what everyone is waiting to see.”

The CDC has for months said that hospitalizations were a better gauge than infections of the nation’s success against Covid-19.

Officials had extended the transportation requirement for two more weeks in part because they wanted to ensure that declining hospitalization trends would continue even amid new subvariants, the two senior officials told POLITICO.

“We are definitely in a new transitional phase. However, a totally new variant that is completely different could change that,” said one of the two officials. “These are purely educated projections with no guarantee of which is happening.”

The possibility of yet another highly transmissible coronavirus variant plus earlier missteps declaring “independence” from the virus last summer only to be caught flat-footed by two new waves have officials nervous about public confidence in the administration’s declaration of a new phase of the pandemic.

Further fueling the anxiety is that the administration has few tools left to combat the pandemic.

In recent days, White House Covid-19 response coordinator Ashish Jha has stressed the need to find ways to accelerate distribution of antiviral pills, privately lamenting that doctors are still too cautious in prescribing them, according to a person familiar with the matter.

The pills have quickly become a primary weapon against the virus, though even that supply is limited because Congress has not appropriated a fresh round of funding. The administration still owes Pfizer roughly $5 billion for pills that it already purchased, and cannot add to that supply until it gets more money.

Though the administration may appeal the decision, some policy experts question reinstating a national mask mandate that was already mired in political debate as officials try to transition the country out of the emergency.

“Not sure how you turn back, how you reverse this without a revolt,” Andrew Sweet, managing director of Covid-19 response and recovery at The Rockefeller Foundation, told POLITICO.

The Biden administration’s strategy for this case will have implications for future public health battles, said Céline Gounder, an infectious disease expert who served on Biden’s Covid-19 advisory board during the transition and is now a senior fellow and editor at large for public health at the Kaiser Family Foundation and Kaiser Health News.

“On the one hand, they’re going to want to preserve CDC’s powers to reimplement if there’s another crisis,” Gounder said. “On the other hand, they may think it’s too risky and that if this were to go all the way to the Supreme Court that this Supreme Court would not uphold CDC’s power to require masks.”

Without backup from federal health officials, it’s unclear how many state and local health departments will go at a masking policy alone. Some cities such as Philadelphia have reinstated mask mandates because of case counts while others, such as Seattle, continue recommending high-quality masks indoors.

“We are headed for mixed requirements, the big question is whether we can get to effective national containment if there is a worse surge or variant,” Bush-era FDA Commissioner and CMS Administrator Mark McClellan told POLITICO.