The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Yesterday, twenty-one mostly "red" states led by the state of Florida filed a lawsuit challenging the Centers for Disease Control (CDC) mandate requiring mask-wearing on public transportation and at transportation hubs, such as airports. The CDC claims that the mask mandate policy is authorized by 42 USC Section 264(a), the very same law that agency used to try to justify its nationwide eviction moratorium, which was invalidated by the Supreme Court in August, after a prolonged legal battle in the lower courts. The Court concluded (correctly, in my view) that the eviction moratorium lacked proper congressional authorization. The plaintiff states clearly hope to get a similar outcome with the mask mandate.
While the two cases raise related issues, I think the mask mandate is on much firmer legal footing than the eviction moratorium was. Courts may well uphold it.
I am far from happy about that prospect. I am deeply opposed to mask mandates, with the possible exception of a few highly specialized settings. In my view, their very modest public health benefits are greatly outweighed by the severity of this restriction on liberty, the pain and discomfort caused by mandatory mask-wearing, and the undermining of normal human interaction (which often depends on seeing people's facial expressions). Mask mandates are especially reprehensible at a time when vaccination is available to virtually all Americans over the age of 5 (and those under 5 face very low risks even without vaccination), for the vast majority of vaccinated people the risks of Covid are comparable to or less than those of the flu, and highly risk-averse individuals can still protect themselves with one-way masking. Further, as Reason's Jacob Sullum explains, the CDC's perpetuation of the transportation mask mandate makes no sense at a time when the agency is recommending against mask mandates in almost every other setting, including many where the risk of infection is substantially greater.
But this is one of those cases where law and justice may be at odds with each other. The legal problems that doomed the eviction moratorium are much less evident in this case.
Section 264(a) gives the CDC the following powers:
The Surgeon General, with the approval of the [Secretary of Health and Human Services], is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession. For purposes of carrying out and enforcing such regulations, the Surgeon General may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary. [a later statute gives this authority to the CDC rather than the Surgeon General]
The Trump and Biden administrations claimed the agency could enact a nationwide eviction moratorium under the catch-all provision authorizing "other measures" that the CDC considers "necessary" to stop the spread of disease.
The Supreme Court rejected that position because, if applied consistently, it would give the agency the power to suppress almost any activity that involves movement or interactions between people. Such sweeping authority is at odds with the more limited nature of the other authorities listed in the statute, and "other measures" should - the Court concluded - be interpreted as allowing only measures similar to the others listed in Section 264. In addition, the Court emphasized that interpreting Section 264 to grant the CDC the vast power it claimed is at odds with the "major question" doctrine, which requires Congress to "speak clearly when authorizing an agency to exercise powers of "vast 'economic and political significance.'"
Several lower court decisions on the eviction moratorium also concluded that it violated constitutional limits on the delegation of legislative power to executive agencies. The government's ultra-broad interpretation of Section 264 would give the CDC enormous power to ban virtually any human activity. If that isn't a nondelegation problem, it's hard to see what would be. I discussed the nondelegation and major question issues in the eviction moratorium case in greater detail in this article.
The CDC transportation mask mandate differs from the eviction order in a number of crucial ways. I summarized them in this March 2021 post:
Law Professor Lindsey Wiley, a leading academic expert on public health law worries that the reasoning adopted in Skyworks and Tiger Lily [two lower court rulings against the eviction moratorium] could potentially lead courts to invalidate the Biden administration's order requiring the wearing of masks on various types of interstate transportation, which also relies on Section 264(a) for authorization.
I think this is unlikely because the focus on transportation is much more closely related to the purpose of preventing the "spread of communicable diseases from… from one State or possession into any other State or possession." In addition, limiting it to transportation may fall into the category of promoting the "sanitation" of "articles" that facilitate the spread of disease across state lines. In this case, the relevant "articles" would be seats and air spaces on buses, airplanes, and other modes of transportation covered by the mask order. These distinctions may be the reason why Biden's advisers concluded (correctly, in my view) that he did not have the power to order a general nationwide mask order, but could impose a much narrower one focused on transportation.
Unlike the eviction moratorium, the mask order need not rely on an ultra-broad interpretation of the vaguely worded "other measures" provision. It could instead potentially be based on the more specific provisions authorizing regulations promoting "sanitation." For this reason, it is less likely to raise major question and nondelegation problems. Stretching the term "sanitation" to cover mask mandates wouldn't give the CDC the power to suppress virtually any human activity, though it might allow it to mandate other intrusive restrictions on public transportation, such as wearing even more restrictive protective gear (gloves, hazmat suits, and so on).
I readily admit it may be possible to come up with plausible narrower interpretations of "sanitation" that would exclude mask mandates. The issue isn't completely one-sided. But the government's position here is a lot stronger than it was in the eviction moratorium litigation.
In addition to relying on the eviction moratorium precedent on the "major question" issue, the plaintiffs in the mask case also argue that the CDC order violates constitutional constraints on federal commandeering of state governments, by requiring the latter to enforce the mandate in state-owned transportation facilities. This argument is similar to that successfully made in other contexts where the federal government tries to compel states and localities to help enforce federal laws and regulations, including gun regulations, and the sanctuary cities cases.
I think the anti-commandeering argument has merit, though the federal government might be able to overcome it by claiming that the states are merely being regulated in the same way as owners of private transportation facilities. But even if the states prevail on that point, it wouldn't lead to the end of the mask mandate; it wold only end the requirement that states help enforce it. In many contexts (such as with the War on Drugs), the federal government must rely on state cooperation to enforce federal law, because there are many more state law-enforcement agents out there than federal ones. Airports, however, are among the few places where there are often large numbers of federal law-enforcement personnel present on a regular basis, such as TSA employees. Thus, the feds can more easily "go it alone" here than in many other situations.
The Florida-led lawsuit isn't the first legal challenge filed against the transportation mask mandate. The state of Texas (joined by Rep. Beth Van Duyne) filed an earlier suit last month. But the multi-state lawsuit is by far the most high-powered and high-profile case of this type.
In addition to the substantive issues these cases raise, there are some procedural questions involved. For example, the federal government might try to get the state plaintiffs dismissed on procedural grounds, such as by claiming they don't have standing. Over the last couple years, the Supreme Court has tightened the procedural screws on state lawsuits against the federal government, most recently in the Obamacare severability case.
I won't go into detail on these procedural issues here. But I tentatively predict that courts will not dismiss these cases based on standing or other procedural grounds, and will have to reach the merits. Among other things, the fact that the mandate applies on state-owned property and requires states to help enforce it gives them a strong argument that the states suffer tangible harm from the policy.
Finally, it's possible this litigation will be mooted out if the transportation mask mandate expires on April 18, as currently scheduled. But the mandate has been extended several times before, and it is far from clear whether the Biden administration will do so again.