The Volokh Conspiracy

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Explaining Vacatur Of The Mask Mandate On The Tarmac

The flight attendant said, "No more masks!"

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Shortly before my flight boarded, Judge Mizelle had vacated the mask mandate rule. As I boarded, United announced that it would continue to enforce the mask mandate. To avoid private sanctions, I kept my mask on. A few minutes before I landed, United reversed policy, and announced that it would not enforce the mask mandate.

At that moment, I took my mask off. When we landed, I had a few moments to speak to the flight attendant before the door was opened. I explained that a judge had declared the mandate was illegal, and that United announced that it would not enforce the policy. I showed the flight attendant the tweet--it came from a blue check mark account, so it must be official! In a moment, it hit her. She said, "No more masks!" As I got off the plane, I saw a smattering of people without their masks in the terminal. The barista at Starbucks screamed out "Freedom!"

Most APA rulings are arcane, and only affect small communities in obscure way. Even so-called nationwide injunctions are barely perceptible for most people. But this decision from Tampa was immediately felt from coast to coast. Judge Mizelle's ruling may be one of the most popular vacaturs in the history of the APA.

Update: Judge Mizelle made the lede of the Drudge Report:

And a colleague wrote on a law professor list serve:

 I am currently on a flight somewhere between DC and Denver and the pilot just made an announcement that a judge struck down the federal mask mandate a few hours ago and we were free to remove our masks. The entire flight erupted into applause and masks started flying like graduation caps. And we complain there's no respect for the courts! (tongue in cheek)

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  1. And then everyone stood up and clapped.

    1. Cheered. They're plenty of video.

  2. Changed my morning flight to an evening flight last night. What a difference this small change has made.

  3. Maybe after the midterms Congress can put some money in the budget to build a statue of Judge Mizelle in front of DoT headquarters.

    1. Virus-flouting misfits are among my favorite culture war casualties -- and just the type of people who wind up as professors at South Texas College Of Law Houston and fans of white, male, movement conservative blogs.

      1. Feel free to mutter that under your mask as you’re accepting progress, Arthur

        1. Your betters don't accept progress. They shape and enforce it. You comply and whine about it.

          1. I bet you have a 5-year plan for "progress", don't you Arty?

            1. It has been a 50- or 60-year program of progress effected against the wishes and works of intolerant, ignorant, disaffected right-wingers. That trajectory seems destined to continue. The mainstream — and better ideas, and better people — will continue to prevail in America.

              Do you genuinely doubt any of this?

          2. "Your betters don't accept progress."

            As Chris Rock said, you can pretend it's something else. But as your better, I will continue to serve you progress with syrup.

    2. You used to have enough pride not to be so lamely petty.

      1. You have a long memory. (Sadly, so do I.)

      2. What's petty about a statue?

      3. I mean, how petty is it to be butthurt that people don't have to wear masks on planes anymore?

        1. It’s going to make the wrong kind of people happy. I think that’s the main concern.

        2. Are you so far down the Tucker Carlson rabbit hole that you think people supported the airplane mask mandate because they were "butthurt" about the alternative, rather than because they thought — rightly or wrongly — that it made passengers safer?

          1. "Are you so far down the Tucker Carlson rabbit hole that you think people supported the airplane mask mandate because they were "butthurt" about the alternative..."

            Huh? Why would I think that? I was addressing one or two individuals who are clearly butthurt.

            1. So lamenting your abandonment of once thoughtful, principled commentary for 24/7 culture war grievance is butthurt? Am I butthurt when I lament the same decline in RAK?

  4. It's just so good to know that in these days of a massacre in Ukraine, of inflation stealing some of the income of low income workers, of global warming producing storms that are killing people, of massive ineptitude of government, of racial hatred invading math textbooks in Florida, of the LBGTQ community converting every straight person to their agenda of sexual perversion that people are able to ignore these issues and concentrate on the most critical issue of the day, the fact that in some cases people are required to wear a face mask to help prevent the spread of a deadly pandemic.

    America, be proud again, the freedom hating caretakers of our national health care system have lost their drive to enslave all Americans to the tyranny of a face mask. Let joy ring out across the land.

    1. “… that people are able to ignore these issues and concentrate on the most critical issue of the day, the fact that in some cases people are required to wear a face mask to help prevent the spread of a deadly pandemic.”

      Which might make sense, if there was even a shred of evidence that masks are any more useful than garlic cloves in preventing the spread of an upper respiratory virus.

      So, with your premise destroyed, now what?

      Just ask the NYT. In their March 9 emailed morning news digest, they stated there was no evidence that mandates or masks made any detectable difference.

      1. Presumably garlic cloves would encourage social distancing, so, actually, that was a pretty bad example.

        1. You might want to rethink that.

          Social distance from yourself?

          (Besides, garlic gloves aren’t malodorous.)

      2. Hey Skipper,
        Get with virology. SARS--COV-2 is not just an upper respiratory virus.

        1. You are right, it isn’t just upper respiratory.

          But it is still upper respiratory.

          1. SARS-CoV-2 and its associated illness is now recognized by virologists as systemic. Otherwise, for example, the would be no "long COVID."
            Saying that it attacks, at least initially one body subsystem does not make it a disease of that sub-system. You're engaging in a bit of misleading sophistry naming the whole by indicating a part.

  5. I am delighted this ruling has come down. I suppose what depresses me is it took an order from a judge for people to actually remove something I would have hoped no one would have complied with from the beginning.

    1. Pandemic management tips from the can't-keep-up backwaters are always a treat.

    2. "I would have hoped no one would have complied with from the beginning."
      Of course you would have because you don't care about the well-being of your neighbor

      1. I presume each individual makes their own risk assessment each and every time they leave their home and adjusts their behavior accordingly. I know I do, don't you?

        I would not presume to assume or demand someone else adjust their behavior to accommodate me, my concerns, fears, or potential health conditions, that onus is on me, and me alone.

        I don't smoke (well we do indulge in the rare and occasional good cigar). If I chose to enter a place where smoking is allowed I would not presume to demand everyone stop because I fear the effect on my health. It was my choice to choose to be there and therefore I accept the risks and the consequences. Should I just the risk to be too high, I can also choose to not enter or remain.

        I choose to do what's best for me, you choose to do what you judge to be best for you, everyone gets along, and no one is forced into a situation they do not like.

        I just think the rights of the individual to feely associate with like minded people always take precedence over the group. It's not a matter of caring, I don't see how it even enters into the picture.

        1. Congratulations, Currentsitguy, on a personal philosophy to preclude public health policy for everyone. What a shame you think you aren't imposing.

          1. Let's be honest, for the past two years there have been plenty of people, millions probably, who have been flippantly disregarding any policy whatsoever. Wearing them when people insist, removing them when they can, etc. I have been pretty rigid in simply not patronizing any place where they are required. I completely removed myself from the "masking world" for lack of a better term. No restaurants, bars, grocery stores, stores, etc that enforced the rule. If anything I took myself out of the list of potential spreaders far more than the average person. How am I harming anyone by choosing to do so?

            It's almost as if you are saying "I INSIST you circulate with others, and that you comply with our rules".

            The country store where I got my food, the diner I drove 45 miles to to get breakfast, the bar I paid a weekly visit to have my one double bourbon, none of those places were going to modify their policy or were in danger of closing had I not chosen to attend. None of their other same minded patrons were going to stop coming if I stopped. If anything the number of people I came into close proximity with dramatically went down. How is that a bad thing? Seems to me it was a form of extreme social distancing.

            1. In other words, you don't give a damn about those who are immuno-compromised, who not only must take precautions for themselves but also tolerate the I-don't-give -a-shit attitude of folks like you who prefer the contaminate the environment for all

              1. Presumably those who are immunocompromised are not frequenting places that were lax in their enforcement. If you chose to disregard common sense, I can't help you or save you from your own poor choices. Ultimately the onus is on you to decide what are and are not acceptable risks. I'm diabetic. I can either choose to have the chocolate lava cake for desert and risk coronary issues, blindness, and limb amputation or not. It is not society's responsibility to protect me. I chose to order it or not with my eyes wide open. If I am in lousy health and decide to go into a restaurant marked "Mask wearing is your choice" and later become deathly ill or even die that outcome was the direct result of the decisions I made and the risks I chose to assume.

                At the time I was appalled by all the idiots who thought a stupid mask made them invincible. That's actually how it got brought home. My wife went with our daughter to pick up a few small items for her new home. She got trapped in the checkout behind an obviously sick woman who was visibly struggling to breathe and was coughing up a lung. When she got home she said "I've just brought COVID home". We knew from that moment on we needed to remain at home, and sure enough 4 days later we were in bed with 102 degree fevers for about 10 days. Once we had recovered the sense of relief and joy that we had achieved immunity was a huge weight off of our shoulders.

                The whole point is it was meaningless theater from day one designed to placate irrational fears. It encouraged people to take risks by congregating in ways they probably should not have because they had a false sense of protection.

                I always thought that a policy of focusing our efforts on protecting the most vulnerable, the elderly, obese, and those with multiple comorbid conditions while allowing it to run through the healthy population was the fastest route to herd immunity and an overall stronger population. Had we done that, this would have been over a long time ago without the social and economic devastation it has wrought.

                I'd offer the same suggestion to those unhappy with this as has been offered to those who have raised objections about free speech issues on Twitter: If you don't like the policy of a private business or airline, no one is stopping you from opening your own restaurant or airline.

                1. "Once we had recovered the sense of relief and joy that we had achieved immunity was a huge weight off of our shoulders."

                  No, you did not achieve 'immunity.'

                  "I always thought that a policy of focusing our efforts on protecting the most vulnerable, the elderly, obese, and those with multiple comorbid conditions while allowing it to run through the healthy population was the fastest route to herd immunity and an overall stronger population. Had we done that, this would have been over a long time ago without the social and economic devastation it has wrought."

                  There is no herd immunity. You haven't been paying attention. Perhaps because you're too focused on your own self-centeredness.

                2. Blah, blah, blah. More of your self-centered rationales and whataboutism.
                  The immuno compromised have as much right to travel as you or other selfish people.
                  Drown in your chocolate lava cake sauce.

                  1. What did you "immunocompromised people" do before 2020, when no one wore masks anywhere?

                    Did they travel? Go out to eat? Were they dying in droves, bodies left to rot in the gutters because no one cared enough to bury them?

                    Stop pretending your fears can be used to require everyone else to take care of you.

                    1. Toranth — the immunocompromised die in droves now. They did not die in droves before 2020. Covid caused the change. You are in denial.

                    2. They were not confronted with a disease as contagious as Omicron or its variants or as virulent as the Delta variant.

                3. Currentsitguy — a thread tacit throughout your commentary is denial that contagion spreads disease. Everything you assert collapses without that counter-factual.

                  1. Thank you Stephen. The selfish love to flaunt their selfishness. Victim blaming is a favorite tool.

        2. I would not presume to assume or demand someone else adjust their behavior to accommodate me, my concerns, fears, or potential health conditions, that onus is on me, and me alone.

          So if people drive drunk, that's fine with you? The onus is on you to dodge them on the roads?

  6. "Judge Mizelle's ruling may be one of the most popular vacaturs in the history of the APA."

    Absolutely fact.

    This ruling is so popular. And what a self-own by Biden. Could've had it for himself, now he looks dumb.

    1. In theory the 11th Circuit could stay this ruling tomorrow, giving the TSA authority to enforce this again. But could they, after the reports of people cheering on planes? The political blowback would be intense.

      1. "The political blowback would be intense."
        Ah-hah. The judges have no cojones.

        1. For the circuit court to stay it, presumably the Biden admin will have to request that. And it isn't yet clear the administration will choose to do that from anything I've seen in the news.

          Planes are pretty safe anyway due to the circulation/filtration. Those who want to wear N95s will continue to do so, others will enjoy being mask free. I don't think masks are needed, but I'd likely wear one on a plane. I don't really mind masks while sitting doing nothing, and getting sick while travelling would be really irritating. I'm fine doing riskier things at home where getting COVID would be rather less of a hassle.

          1. Having just gotten sick while traveling due to ~100 teenagers whooping it up without masks or any concern for other, I'll tell you how irritating it can be.
            While there are no definite cases of fomites being the sole cause of infection, they are a real source of infection spread by the unmasked. Mreover the proximity of the asymptomatic infected during boarding and deplaning when the air circulation is minimum does put a high viral load in the air. As even the best masks don't filter out all virus-laden aerosols the air is continually contaminated for 10's of minutes without adequate ventilation. 5% of a large number of virions is still a large number.

    2. "now he looks dumb."
      What do you mean, "now."

      1. Touche!

  7. Mask police were making life worse for everyone and then we all cheered when the mask police finally got defeated.

    And it’s really nice that Biden can’t pretend to take credit for any of it.

    1. I know. It's weird that the libs insist on handing Trump credit for something that might turn out to be kinda popular.

  8. I know it's crazy that some people don't hyperventilate about how masks are tyranny and think no masks on a plane is freedom.

    Doesn't mean we think masks are the most fun thing in the world, but some don't take those words so lightly.

    1. No one ever told you you weren’t allowed to wear a mask if you wanted to

        1. How do disaffected clingers deal with stop signs?

          That’s just another example of educated “elitists” telling the “real Americans” what to do.

          1. Guess it all depends on the situation. If I am on a back road in the middle of Kansas where I can see unimpeded to the horizon in all directions, then yes, probably no point in stopping or harm in driving through. That would be a lousy and stupid decision in Midtown Manhattan. It's a good way to get t-boned.

            I have always thought the author Robert Heinlein summed it up best:

            "I am free because I know that I alone am morally responsible for everything I do. I am free, no matter what rules surround me. If I find them tolerable, I tolerate them; if I find them too obnoxious, I break them. I am free because I know that I alone am morally responsible for everything I do."

            1. I guess that you advocate to choose to be immorally irresponsible

              1. You just described the ENTIRE Democrat platform!

  9. We know, you side with those who prefer to hyperventilate about how 2+2=4 is racism and think punching right-wingers is freedom.

  10. I hope Biden appeals this so he can try imposing mandates again sometime before the election.

  11. Getting deep unfiltered lungfuls of the recent exhales of a planeful of mouth breathers sharing the same continually recirculated aerosol is what freedom is all about. This is a dream come true. The rediscovered liberty can actually be tasted with each breath, it's absolutely delicious. Going without this for over two plus years has been a living heck, and the sort of deprivation of liberty that I wouldn't wish on my worst enemies. However, if this reduces the uptick in drunken fist fights on planes, I will miss those. There is no free lunch, liberty has a price, it is not free.

    1. That's not how air exchange on planes works. At all.

  12. I can't remember seeing "list serve" spelled like that. It was originally LISTSERV, a mail product from the era when many people couldn't afford lower case letters or words longer than 8 characters.

    "Afford lower case letters" is kind of a joke but not completely. My father bought for me a piece of hardware to add lower case letters to my little 8 bit computer. I would not be surprised to learn that lower case letters were a paid upgrade for IBM printers of the time. IBM was known for artificial low-high splits in computing products.

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