The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Vacating The Mask Mandate at 30,000 Feet

The CDC mask mandate was vacated without a stay. Can flight attendants still threaten people with enforcement of civil fines?

|

Earlier today, Judge Mizelle vacated the CDC mask mandate. At present, I find myself (where else) aboard a United flight. And the flight attendant made the obligatory announcement that failure to wear a mask would result in a civil fine. Of course, all of the administrative lawyers in the air understand that the CDC rule is currently vacated, and, unless a stay is issued by the Eleventh Circuit or the Supreme Court, the rule has no effect. I could be the perfect test case if I take off my mask. But, I would still face privately-enforced sanctions from the airline, so I will pass. Still, I wonder if some enterprising lawyer, somewhere, contests the CDC mask mandate right now.

Update: United Airlines will continue requiring masks:

The federal requirement that masks be worn on board aircraft and in airports remains in effect for both customers and employees, despite the decision by a federal judge on Monday that struck down the federal mask mandate. The federal mandate originally went into effect in February 2021 but has been extended a number of times. We await additional information from the federal government on whether it will challenge the ruling or rescind the order. Until that time, the airport mask policy remains unchanged.

Still, a person who refuses to wear one in the present moment cannot be subject to civil fines.

NEXT: Supreme Court Denies Certiorari in Blue State Challenge to Cap on SALT Deduction

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. GREAT opinion by the judge. Very swiftly and logically tears down the arguments that the law allows them to do this, and even better points out that just stating "this is good and common sense!" isn't a proper justification for a regulation.

    I'd take off your mask. If they ask you to put it on, talk about this ruling, and if they push, then do it. That's my plan!

    1. An airline is still a private business. The CDC mandate, when in effect, only creates a minimum standard.

      1. The ruling impacts all public transport, which is not private. And in case you didn't notice, the (private) airlines are against the mandate: https://www.foxbusiness.com/business-leaders/airline-ceos-biden-end-federal-mask-mandate-letter

  2. Oh boy!

    Let's see.....

    A judge who is, what, 33?
    Check.

    Appointed by Trump?
    Check.

    Rated as "Not qualified" by the ABA?
    Check.

    Never tried a single case in her life?
    Check.

    Look, I checked out her bona fides. Seems bright. But generally we want our judiciary to have their intelligence honed with the wisdom that comes with a little bit of time. For a reason.

    1. The distilled essence of wingnut. If she were male, she’d have been a strong candidate to join The Volokh Conspiracy.

      Carry on, clingers. While you can.

      1. Hey nazi, why haven't you moved to Russia?

    2. 10 months of experience practicing law at the time of the nomination...

      1. How in the world do you turn this into 10 months experience as of 2020?

        Upon graduating from law school, Mizelle served as a law clerk to Judge James S. Moody Jr. of the United States District Court for the Middle District of Florida and to Judge William H. Pryor Jr. of the United States Court of Appeals for the Eleventh Circuit. She worked as a trial attorney in the Tax Division of the United States Department of Justice from 2014–2017, and was detailed as a Special Assistant United States Attorney for the Eastern District of Virginia from 2014–2015. Mizelle was Counsel to the United States Associate Attorney General from 2017–2018. In 2018, she briefly clerked for Judge Gregory G. Katsas of the United States Court of Appeals for the District of Columbia Circuit, and then clerked for Associate Justice Clarence Thomas of the Supreme Court of the United States.

        1. However valuable an experience clerking might be, it's not practicing law. Neither acting as an advisor for high-level government officials.

          1. It definitely doesn’t prepare you to manage a trial court docket. Or sentence people.

            1. Good thing constitutional law judges don't have to manage trial court dockets or sentence people.

              1. If this is a joking reference to a post on @badlegaltakes, kudos.

                If you think there is such a thing a “constitutional law judge” and that US District Judges don’t manage trial dockets or sentence people….good lord.

                1. Most of this blog's commenters are half-educated clingers, not lawyers.

          2. Trial attorney in the tax division for 2014-2017 sounds like somewhere over 2 years of experience 'practicing law', at least to this non-lawyer.

            Being counsel to a government official sounds like practicing law, too. (Although not courtroom experience).

          3. However valuable an experience clerking might be, it's not practicing law. Neither acting as an advisor for high-level government officials.

            The latter seems a stretch, but even stripping that out still leaves her with 3+ years rather than the 10 months you claimed. (Note the ABA credited both government positions as well as the district court clerkship, for a total of 5 years trial court experience.)

      2. If you can't reasonably disagree with the ruling, emotionally attack the judge that made it.

    3. Unfortunately common sense is now on the side of the the people that have been anti-science since Trump lost and they started throwing a tantrum. Republicans got a lot of people needlessly killed in 2021 but Omicron finally made them right that the vaccines are crappy and masking doesn’t work and there is not much we can do about Covid. Although they were saying it’s seasonal which Omicron undermines because Omicron was a wave.

      1. "Omicron finally made them right that the vaccines are crappy and masking doesn’t work and there is not much we can do about Covid"
        Wow, a set of half-truths that sum up to a Big Lie.
        1) Masking does not work. That is because 20% of wearers on planes and in airports use masks incorrectly such as under the nose, under the chin, off, and lifting up and down frequently touching both sides.
        2) Vaccines are crappy. Present COVID-19 vaccines have proved to be weak protection against being infected with Omicron strains. They have proved to be highly effective as limiting the seriousness of those infection.

        Finally for the a**hole, JB.
        Any full flight will have 10's of immuno-compromised individuals. Eliminating in-flight mask mandates will almost guarantee that some of those people will be infected with COVID. That some poorly qualified judge vacates the CDC mandate, notwithstanding.

        1. You misread my comment—masking worked and vaccines worked through Delta. Here is an epidemiologist saying natural immunity is superior to vaxxed immunity and so Omicron is the time to change strategy:

          “It could be that we are seeing the resurgences in China, including the emergence and spread of new sub-strains, primarily because the population there never achieved high levels of natural immunity,” Edwin Michael, an epidemiologist at the Center for Global Health Infectious Disease Research at the University of South Florida, told The Daily Beast.

          You can’t build up natural antibodies across a large population if no one is ever exposed to the virus. That’s the downside of total lockdowns. The antibodies in recovered COVID patients lend strong immunity that, combined with vaccinations across large groups of people, can help blunt the impact of a new lineage. Michael for one said he believes natural immunity is stronger and longer-lasting than immunity resulting from even the best messenger-RNA vaccines.

          1. Dr. Michael has stated an interesting hypothesis.
            Whether it is accurate in general, I have not studied in my own research, But I have assembled a large enough database to evaluate the hypothesis to some extent.
            Thank you for the suggestion.

            1. Don't forget that Chinese vaccines are not American ones.

          2. SC,
            After a one month hiatus, you got me back to my own research on the topic. Again my thanks for that.
            After going through data from several other countries which are not easily relevant to testing Dr.Michael's hypothesis, I came to Sweden. It provides a direct falsification of the hypothesis. Early to Fall 2020, the case rate and the cases fatality rate were high, as the Swedish Public Health Authority had the policy of pursuing "herd immunity."
            ["Evaluation of science advice during the COVID-19
            pandemic in Sweden," Humanities and Social Sciences Comm., https://doi.org/10.1057/s41599-022-01097-5 ].
            Eventually in 2022 the percentage vaccinated reached about 75%. Nonetheless, during the Omicron wave the number of daily new cases spiked to levels roughly 8 times greater than at any previous period. In addition, at the same time the case fatality rate also spiked to over 2% which would be highly unexpected if Michael were correct. In fact in most countries the CFR dropped well below 0.5% during the Omicron wave.

            In partial defence of Dr. Michael, I do think that his hypothesis seems to fit the data from Korea and Australia. I have not look at their data in detail yet. That comes next today.

    4. Obviously she’s a political hack making a political decision. As (some will say) will be the case with future Justice Jackson because obviously a liberal black woman will make typical liberal black woman decisions.

      Like you, those people won’t bother to consider the basis for the decision, but will simply judge it based on politics. You should understand since you seem to be one of those people. Your process applies to rightthink decisions just like it does to wrongthink decisions.

      1. Well, I appreciate your contribution. But ... I actually read the opinion. I could discuss the areas in which I think she went wrong, but ... why bother? No one here wants to discuss that, and most people (including you) wouldn't understand or care.

        That said, if you look at it from the big picture point of view, you have a single judge vacating the CDC interstate transportation mask mandate.

        Now, of all the the mask mandates ... this is the most defensible. But normally, in a situation like this, a judge would either grant a stay to allow an appeal, or (at a BARE minimum) grant a stay to allow time to go to the 11th Circuit for the stay.

        That neither was done, especially given the .... uniqueness of the decision, and the nationwide impact, seems like the kind of thing that a judge untempered by either experience or reality might do.

        1. I see I posted incorrectly just as you posted that you did indeed read the decision. But your excuse for critiquing the judge, personally, instead of the decision itself, is pretty pathetic.

        2. "I could discuss the areas in which I think she went wrong, but ... why bother? No one here wants to discuss that, and most people (including you) wouldn't understand or care."

          Oof. Are you just asking people to ignore you? That's sure what it sounds like. If you're not interesting in discussing anything why are you talking?

          1. I don't think the legal issues in the opinion are very interesting, honestly. I mean.... it's pretty standard results-oriented, crimped reading. As soon as you get to the part where the judge is going off on how this has only been used for quarantines , but never in a POLICE POWER way like having people wear a mask, you know that there's something extra-textual going on.

            The only really interesting legal issue is that we are getting a nationwide decision affecting the federal government without allowing even the time to appeal. Which is ... really interesting (and not in a good way).

            The opinion isn't interesting at all. The lack of judicial humility and the gradual erosion of normal procedure in the courts? That's ... that's an interesting topic.

            But not something I expect people in the comments to be discussing. As you can see if you looked.

            1. Well, OK. But it still seems odd to set yourself up for a flame war for something you don't even care enough to defend in the first place. To each their own, I guess. FWIW, I found your longer explanation interesting.

        3. You didn’t attack the decision. You attacked the judge.

          1. Sure did! I listed facts about her.

            And then I said that she seemed bright, but that I wanted judges with more experience. Because they tend to be more attentive to things like, "This is how litigation works in the real world," and "Orderly process really does matter."

            I never knew that wanting judges with a little humility and a little experience was some crazy, wild-eyed partisan position.

            1. Yes, it is. I don't care about humility OR experience. I want someone who will interpret the law properly. It seems to me the more "experience" a judge gets, there is an inverse relationship to how they interpret laws.

              1. I want someone who will interpret the law properly.

                And how do you predict whether they're likely to do that if they don't have a track record to look at?

                1. IDK, maybe the way we did it for Justice William Rehnquist?

                  1. I'm not following. Rehnquist had a long legal career, culminating in three years running the Office of Legal Counsel, which gave President Nixon a pretty good opportunity to suss out his likely approach.

                    1. He had no prior judicial experience, which is what you were complaining about ("how do you predict whether they're likely to [interpret the law properly] if they don't have a track record to look at").
                      Judge Mizelle, while having no prior judicial or trial experience (just like Renquist, and most other Justices) had several years of experience as legal counsel to a government officials.

                    2. If you were charged with a crime would you hire your buddy who spent his 7 years out of law school doing wills and estates to represent you? Almost certainly not.

                      Now take that rather sensible reasoning and apply it to picking trial court judges who haven’t done trials.

                    3. He had no prior judicial experience, which is what you were complaining

                      No, I wasn't trying to suggest that the only way a track record can manifest is through judicial experience. (Obviously it's not really feasible for prior judicial experience to be a prerequisite for a judicial appointment.) But it has to come from somewhere. Preferably somewhere more substantive than being married to a friend of one of the president's advisors.

                      udge Mizelle, while having no prior judicial or trial experience (just like Renquist, and most other Justices) had several years of experience as legal counsel to a government officials.

                      You cannot seriously be suggesting that Judge Mizelle's experience as a lawyer is comparable to Rehnquist's.

                    4. By this reasoning, no one would ever be qualified to be a first time judge.
                      You are simply hand waving, and asserting that prior experience as a trial lawyer is good enough to be a judge, but that prior experience as legal counsel is not.
                      It may or may no be true, but you have done nothing to support that assertion, and certainly have not demonstrated it to be true in Judge Mizelle's case, which you admit you know absolutely nothing about, save for here current ruling.

                    5. To N.a.a:
                      You were asserting there's no way to know how Judge Mizelle would interpret the law, presumably in the basis of her lack of judicial experience, as "interpreting the law" is what a judge does.

                      I am not equating her experience to that of Rehnquist. She has less, and was accordingly nominated to a far lower position than he was. I was using him as an example of how 'you predict whether they're likely to do that [interpret the law] if they don't have a track record to look at" when dealing with people without prior judicial experience. You look at their legal career- and she was legal counsel for several years.

            2. Would you say the same about Justice Kagan (who has even less actual experience)? Note: I actually think Kagan is well qualified.

              1. Different position. Trial court judges who have no trial court experience are usually not great at their job!

              2. who has even less actual experience

                How do you figure? Even setting aside her decade as one of the country's most prominent law professors, Kagan had at least as much time practicing law, including 15 months as solicitor general, which included arguing a number of cases in front of the court she would serve on, whereas as I understand it, Judge Mizelle had never tried a case in any federal district court.

                1. including 15 months as solicitor general, which included arguing a number of cases in front of the court she would serve on

                  How circular. Surely under your standard she wouldn't have been qualified to be SG in the first place, never having tried a case.

                  1. I would be fascinated to see your explanation of how anything I said implies such a thing.

                    I also fail to see your point. If Judge Mizelle does a good job as a distinct judge, that would certainly be a valid credential for whatever else she desires to do, notwithstanding the fact that she probably shouldn't be a judge to begin with.

                    1. Wow, you just love begging the question, now doubling down with calling the premise "a fact"!
                      You have never explained why she was unqualified, and someone doing a good job in a role is good evidence that they were qualified for it.

            3. How much experience is acceptable to you?

        4. I don't recall that such stays were granted in previous national injunctions during the Trump administration (e.g against the travel bans), but I am sure your panties were in a bunch over those rulings, too.

    5. You haven't actually read the decision. Your entire critigue is ad hominem.

      1. Virus-flouting, science-disdaining right-wingers are among my favorite culture war casualties.

        Carry on, clingers. So far as your betters permit, and not a step beyond.

        1. Carry on Nazi. Maybe you'll get your wish and be able to march right wing people into the showers someday.

    6. Approved by the senate?
      Check

      You can thank Harry Reid!

    7. Do you need to have tried a case to decide a motion for summary judgment on the briefing? It seems like an exercise in reading arguments, conducting legal research, forming an opinion, and drafting an order.

      1. No. But her job isn’t: do this one summary judgment order in this political case. It’s actually: be a trial court judge and manage litigation in a wide variety of civil and criminal cases.

        1. So you're saying that's a requirement to be confirmed by the senate as a federal judge or you think it *should* be one?

          1. Obviously the senate has the power to confirm unqualified people to be federal judges, just like the president has the power to nominate and appoint them -- witness the fact that Judge Mizelle is, in fact, a federal judge. That doesn't mean that either the senate or the president is immune from criticism when they exercise that power in such a way.

            1. You are begging the question.

              1. ZZt,
                Do you even know what that phrase means?

                1. Yes. Do you?

                  Assuming your premise (that Mizelle is unqualified) as proof that the president had nominated an unqualified judge is a textbook example.

                  1. I made no comment about the judge herself. That is your erroneous assumption. I said nothing about the Orange Clown (until) right now) that is your erroneous conclusion.
                    You clearly misused a commonly misused phrase t defend your partisan assertions.

                    1. How have I misused the phrase? It seems quite clear that you don't understand what it means.
                      You may have not commented on the judge, but my response was to N.a.s, not to you.

            2. Obviously the senate has the power to confirm unqualified people to be federal judges . . . witness the fact that Judge Mizelle is, in fact, a federal judge.

              Just a scant couple of months ago, I received many a patronizing explanation around here that a Supreme Court justice didn't really need any qualifications but a law degree and a pulse -- and the former was debatable. Now we're all the way down in district court, and it seems to me you're throwing around the term "unqualified" in a very... well, unqualified fashion.

              Are you referring to the subjective label applied by the political organization known as the ABA, or something else?

              1. Just a scant couple of months ago, I received many a patronizing explanation around here that a Supreme Court justice didn't really need any qualifications but a law degree and a pulse -- and the former was debatable.

                I'm pretty sure that I didn't say that to you (or anyone else), and I'm not going to try to defend what you think other people (most of whom I probably disagree with about what makes a good judge). But there are certainly lots of people who are not qualified for the Supreme Court (including Judge Mizelle, obviously).

                Are you referring to the subjective label applied by the political organization known as the ABA, or something else?

                No, the ABA has pretty thoroughly discredited itself with its record of nakedly partisan. That doesn't mean that every conclusion they've ever reached is wrong though, and in this case they nailed it: a smart person 8 years out of law school who has never tried a case is not qualified to be a district judge, even if her husband is friends with Stephen Miller.

                1. a smart person 8 years out of law school who has never tried a case is not qualified to be a district judge,

                  So to be qualified you have to be... not that? Seems a bit results-oriented.

                  1. What's the full standard?
                  2. Says who?
                  3. How many current sitting judges, both D and R appointed, don't meet it?

                  1. So to be qualified you have to be... not that? Seems a bit results-oriented.

                    What are the results you think I'm oriented towards, beyond increasing the quality of the district court bench?

                    1. What's the full standard?

                    There are some people who are clearly qualified, and some people who are clearly not qualified, and there are enough the former that I don't think it's necessarily productive to spend a lot of time thinking about exactly where the lower bound lies. Certainly if you're going to argue that a person in their early 30s who has never tried a case is the best candidate for district court judge, I'd expect an explanation about what else you think they bring to the table; I've not heard anyone articulate an answer in this case.

                    2. Says who?

                    Me. Who's opinion did you think I was giving?

                    3. How many current sitting judges, both D and R appointed, don't meet it?

                    There are certainly not many judges (if any) whose qualifications are as lacking as Judge Mizelle, which is part of why her case is so memorable.

                    1. If you need a D example, Allison Nathan is probably a good one to point to as someone who probably shouldn’t have gotten a nomination.

                    2. There are certainly not many judges (if any) whose qualifications are as lacking as Judge Mizelle, which is part of why her case is so memorable.

                      How about Judge Jasmine Twitty? Any stellar qualifications beyond being black and having a vagina?

                    3. Wow. You had to dig really deep to find that example which isn’t a federal appointment or even a state court of general jurisdiction.

                    4. I didn't see any such limitation in N.a.S's assertion that 'There are certainly not many judges (if any) whose qualifications are as lacking as Judge Mizelle,"
                      But I am truly interested in what you think of Ms. Twitty's qualifications. (I'll give her points for the name)

                    5. is the best candidate for district court judge

                      And behold the sui generis goalposts move, from "qualified" to "the best candidate." Exactly, precisely, the opposite of what we just went through with Jackson.

                      At this point I have little choice but to think the opinion that started this amazing ad hominem avalanche must be pretty damn rock solid.

                    6. I didn't see any such limitation in N.a.S's assertion that 'There are certainly not many judges (if any) whose qualifications are as lacking as Judge Mizelle,"
                      But I am truly interested in what you think of Ms. Twitty's qualifications. (I'll give her points for the name)

                      I did think you were talking about federal district judges, but sure—I would agree that anyone who is not a lawyer is by definition not qualified to be a judge. Though most low stakes state courts that have non-attorney judges generally do so because they can't attract enough qualified lawyers for the position, which is obviously not the case in the Middle District of Florida.

            1. Sounded to me like you were describing job requirements she wasn't following.

              1. No. I’m describing the job of a trial judge. The job is the job no matter what presidents and senators think qualifies someone to do it. They could nominate and confirm a baby and then Judge Baby would have to manage a civil and criminal docket.

                1. Do you have any substantial issues with any of here decisions prior to this one?

                  1. Look I was just replying to a guy who seemed to think that she didn’t need good trial court experience because she could rule on a summary judgment without it (which is also untrue, but whatever).
                    I was simply pointing out that her job is much bigger than this motion that’s why people are rightly skeptical of trial judges who lack trial experience.

                    And also: I actually have a life so I don’t have time to monitor PACER all day to critique every single decision she makes.

                    1. I take that as a 'no' , then - you don't actually have anything you can object to, other than her ruling on a case in a way you don't like.

                    2. Okay. But I also do object to her lack of experience, I noticed it when she was nominated. I think it is absolutely reasonable to point out that the trial court judge who lacks trial court experience might not be great at her job!

                    3. So I'm giving you a chance to support your assertions.
                      She had very little trial experience, granted. You claim such people are not great at their job as judge - what supports that claim in her case? Seems you have nothing but hand waving and assumptions.

                    4. Look, zztop8970 is just sealioning here. There's no point in trying to have a discussion with someone who in bad faith just keeps asking for the information you've already given him.

                    5. What information has he supposedly already given me? What evidence has he presented to support the assertion that judges without prior judicial experience are bad at their job, in general, or in this particular case?

        2. which she has been doing since November 2020 without a word from you, until she happened to rule in a way you don't like.

          1. So what?
            Neither he nor you nor anyone else posting here is her job performance assessor.

            1. Several of the posters criticizing her seem to think they are her job performance assessors.

              1. Well we are, aren’t we? Members of the public typically assess the performance of public servants. And lawyers generally assess the quality of judges. This ain’t weird at all.

                1. take it up with Don Nico, who asserts that "Neither he nor you nor anyone else posting here is her job performance assessor".

                  And I've yet to hear anything from you that assess the quality of her legal reasoning,. You just don't like the ruling in this case.

              2. So it seems are you.

                1. where'd you get that idea from?

            2. Several of the posters criticizing her seem to think they are her job performance assessors.

              I'm not talking about her job performance. Nor could I: I don't know anything that she'd done besides this opinion, and I'm not even sure that she got the question wrong (although her analysis certainly didn't persuade me that she's definitely right). Unqualified and poorly-qualified candidates sometimes do a good job, and well-qualified candidates sometimes end up being terrible.

              It doesn't follow that we should celebrate the elevation of the former.

              1. It doesn't follow that we should celebrate the elevation of the former.
                begging the question. again.

                1. Again, your deliberate misreading for your own tribal views

                  1. You don;t understand what the phrase means, that much is obvious,
                    It means assuming your premise, which N.a.s is doing, repeatedly.

    8. What does any of this have to do with her legal reasoning in the case? Definition of ad hominem fallacy.

      1. Someone on the internet used "ad hominem."

        I guess an angel gets it wings?

        1. A liberal doesn't address the point made.

          If that's what makes angels get wings, Heaven is already too full...

    9. What part of the law did the Judge get wrong?

    10. If only she were black, then she would be eminently qualified. Because, you know, of her skin color and vagina.

      1. Why does the Volokh Conspiracy attract so many right-wing racists?

        Any dean of a law school considering hiring a movement conservative to a faculty position should consider this point carefully . . . unless that school is a fourth-tier, conservative-controlled school, in which case . . . cling away!

        1. Consider straw man beaten. Back to the merits now please?

  3. Once again, masking mitigates spread to some degree but being a Nazi about masking has been counterproductive. Furthermore it appears the masks people were wearing don’t mitigate spread of Omicron so it’s best to just do away with mask mandates and let individuals to wear masks that stop the individual from getting infected irrespective of what others are doing. So at this point a mask mandate might make the situation worse giving people a false sense of security because others aren’t in compliance or wearing an inferior mask that is doing nothing. Furthermore an individual that is very worried about getting infected on an airplane can drive or use Zoom.

    Masks worked and mask mandates aren’t draconian but for some reason Republicans politicized masking and vaxxing in 2021 and so we must factor the politicization into public health measures.

    1. "the masks people were wearing don’t mitigate spread of Omicron"

      SC,
      That does not follow. The Omicron variants are no smaller or lighter than other SARS-CoV-2 strains. It is not the the masks are not as effective, rather the haphazard way people misuse of don't use masks has far greater consequence in terms of the number of infection for these extremely contagious variants

      1. As health officials scramble to minimize spread of the highly contagious Omicron variant, many experts have recommended that people switch from cloth or surgical masks to more-protective N95 and KN95 masks.

        The U.S. Centers for Disease Control and Prevention’s (CDC) current mask guidance does not explicitly recommend one type of mask over another, instead specifying that people should choose the most protective and well-fitting mask they can wear consistently. But on Jan. 14, the agency released more detailed information about the differences between masks and confirmed that some—like N95 respirators—are more protective than others, like cloth and surgical masks.

        1. Exactly, some are much better than others.
          And if your glasses fog, then the fit is not good enough etc.
          Omicron has exposed how poorly people have used masks and for many deliberately so.

  4. So they also announce that failure to follow crewmember instructions is a federal offense.
    There are too many pieces for me to follow them all, but i assume they are talking about things like:
    49 USC 46504
    49 USC 46318
    etc
    Clearly you refusing to wear a mask is not assault, but depending on how you do it, it may be interference by intimidation. It may be attempting to do so. It may be lessening their ability to do their duties.

    This is all true whether what they ask you to do is legally something they can or not - the offenses i see have no element of whether the request is lawful or not.

    It would be interesting to see the limits there.

    1. One would hope that refusing to comply with an illegal request from the flight crew would not be a federal offense. It's not very different than a solider refusing to obey an illegal order. Then the question is whether the request is legal. Does United have the discretion to impose their own mask rule? Maybe? Maybe even likely. OTOH, if you were on a Delta flight (where reportedly the CEO has stated that they will not be enforcing mask rules in light of the court ruling) you're probably on solid ground refusing to put on a mask.

      As much as I'm pleased with this ruling I'm not going to run out and book any airline tickets just yet. But whether or not it's well-reasoned or likely to get stayed it's another step in the direction of getting rid of this assinine rule and all the other trappings of the pandemic authoritarianism.

      1. You might have a different opinion if you were immuno-compromised and you had to fly.
        If the pilot wants you to wear a mask, then you'd better do it whether there is a law or not. Of course the next time you are welcome to take your business elsewhere

    2. I have a friend who can explain the issues. He is retired now. He started his career flying the F-86 Sabre in combat during the Korean War. He ended his career as a senior pilot training guy, supervising training for several aircraft types (including the 747) for United. Here is the explanation he offers:

      Passenger is unruly and obnoxious, drunk.

      Flight attendant tries to intervene, and fails. Gets back belligerence from passenger.

      Flight attendant goes to cockpit. Comes back with my friend.

      My friend says to passenger, "See these flight attendants? They get paid to be nice to you. I don't. I am the captain of this airliner, and if you don't do exactly what the flight attendants tell you to do, I will put you in irons."

      I believe that to be a complete and exact description of the law governing passenger discipline aboard airliners. I suggest anything written to the contrary will not stand up in court.

      1. Ridiculous. If the flight attendant instructs you to punch the passenger next to you, and you refuse, and the Captain comes out and says he'll put you in irons if you don't, you think the Captain will stand chance in court?

        1. Your idiotic hypothetical strawman doesn't merit a serious reply.

          1. No arguments, just insults. par for the course for the likes of you.
            See if you can get an adult to explain the following to you:
            SL stated "I believe that to be a complete and exact description of the law governing passenger discipline aboard airliners.". Even prior to my post, KeithK noted that this is not the "complete and exact description of the law", as the flight crew's instructions need to be legal. Hence SL's claim is false.

            1. Did Stephen's statement include unlawful activity by the airline crew? No.

              You added that to your hypothetical, which made it a strawman because that wasn't his argument, and also made it idiotic because you should know better.

              Take another number and try again.

              1. SL 's statement was " I am the captain of this airliner, and if you don't do exactly what the flight attendants tell you to do, I will put you in irons. I believe that to be a complete and exact description of the law governing passenger discipline aboard airliners."

                My hypothetical illustrates that this is NOT a complete and exact description of the law . Get an adult to explain it to you.

                1. Did his example include unlawful actions by the flight crew?

                  Nope.

                  You're down 0-2. Time to protect the plate.

                  1. His example was said to be "a complete and exact description of the law governing passenger discipline aboard airliners."
                    get an adult to explain this to you, may the word "complete" is tripping you up.

        2. Don't be an ass.
          The pilot makes the rules of behavior on the plane. If he decides that your failure to behave "forces" him to land the aircraft prematurely. You'll find yourself with a hefty bill and likely a a day in court

          1. The pilot makes the rules on the plane, subject to OTHER rules. He can't make a rule that forces you to act illegally.
            Let's try another example: Suppose the pilot announces you must undress and wear your underwear over your face for the duration of the flight, you refuse, and he decides that your failure to behave "forces" him to land the aircraft prematurely. You think that pilot will prevail in a civil suit alleging civil rights violations?
            I am not disputing that the pilot has a lot of discretion to determine proper behavior on-baird, but that discretion is not as absolute as SL imagines it to be.

            1. SL's story did not include unlawful directives. He also did not suggest that they were somehow included. A reasonable person would not assume otherwise.

              Your assumption is an unreasonable one to support a strawman you've created.

              1. SL's example was said to be "a complete and exact description of the law governing passenger discipline aboard airliners."
                get an adult to explain this to you, the word "complete" is tripping you up.

                1. Your inability to be reasonable is neither an excuse, nor a defense.

                  "Passenger discipline" is not commonly understood to include unlawful directives.

                  Perhaps you lost the ability to read in complete sentences when you misplaced your ability to properly construct them.

                  1. I have explained my reasoning , repeatedly. you just are unable to follow it. Again, get an adult to explain it to you.

                    1. Your reasoning is not reasonable, you dumb fuck.

                      When you 'discipline' your children, does that involve shooting them? Raping them? Any other illegal acts? No. That's because 'discipline' isn't a term which is understood to include committing crimes.

                      Now kindly shut the fuck up. Actually - I'll take care of that myself. Good riddance!

                    2. Rha you don;t understand what I am explaining is your problem, not mine, and I also gave you advice on how to remedy that (get an adult to help)

                      If someone said "I can discipline my children in any way I want, that is the complete and exact defintion of the laws on child discipline", someone with more than half a brain would point out that, no, there are laws that limit the ways you can discipline your child.
                      And it is telling that your only "counterpoints" are mere insults.

            2. Never mind your bogus hypothetical. Of course the pilot cannot force you to commit a crime. Sure, SL exaggerated a bit, but only a bit. You just don't like the consequences of the rules about a plane or ship.
              Quit the sophomoric arguments that would not even pass in a dorm room with beaucoup beer.

              1. I am perfectly fine with the rules of conduct on a plane or ship, I don;t know what gave you the opposite idea.
                What I don't like are sweeping incorrect exaggerations, presented in a pompous know-it-all way.
                The pilot can't force you to commit a crime, nor can he force you to follow unreasonable , capricious orders that have no basis in law which are not crimes,

                1. zztop8970 — I'm no know-it-all. On many subjects I'm completely ignorant. But on some subjects I know it better than average. Aviation procedural stuff is one of those subjects.

                  I spent years on a citizens' advisory committee, interacting in a seemingly-endless series (lasted about 5 years) of intermittent day-long meetings with senior aviation bureaucrats, aviation technical experts, airline pilots, air traffic control managers, tower personnel, airspace planning experts, aviation noise experts, and others. I accumulated about a 12-foot shelf of documents, detailing a wealth of aviation management procedures, technical information, operational impact data, and legal information.

                  I organized three Boston-area towns to join forces and bring a lawsuit against the FAA, to get a grossly inadequate Environmental Impact Statement replaced—which it eventually was, but not until the subject project had been built without it.

                  I served as the towns' principal liaison with the lawyers on that one, and personally prepared evidentiary documents and graphics for a suit on which one judge was forced to recuse, and which his successor refused to hear.

                  Toward the end of all that I got an endorsement I will tell you about. My dad was hospitalized in the DC area. I went there to visit. He was recovering from a heart attack. I found him in good spirits, ensconced in his curtained half of a double room.

                  By that time I had it full-up with the FAA. I was regaling my dad with tales of their unreasonable procedures; absurd refusals even to converse on unavoidable topics; the legal impunity built into every law which ostensibly governed them; their unwillingness to listen to consultants they had hired, after those consultants asked them to commit to actually do things they promised in negotiations; their insistence that no airport-measured data detailing noise impacts could ever be considered—it was their policy to rely on only computer-modeled noise output by black-box computers they controlled; their refusal to even file completed environmental impact statements with the National Archives—stuff like that, and a lot more. I knew how to make frustration sound funny, and we were having a good time.

                  After nearly an hour of that—from the other side of the curtain—came an assertive voice from my dad's hospital roommate: "I work for the FAA," he announced. "Oh, shit," I thought. I figured I had probably exaggerated some of it for effect. "And every word you say is true," he added.

        3. zztop8970 — The Captain who said it would answer in court that it was his judgment that the safety of the aircraft and all aboard depended on subduing the unruly passenger, using whatever resources he could command. The judge would say, "Not for me to say otherwise."

          If I was the guy who wouldn't punch someone, probably I would not suffer legally for my refusal, after I had been freed from my irons. If I decided to sue the captain or the airline, I would lose. I doubt I would get into court. Maybe as they turned me away there would be some mumbling about me seeking relief the court was powerless to grant.

          American airline captains enjoy deference almost unparalleled. They do not even have to obey the directions of air traffic controllers. They get sole discretion to make whatever decisions they think necessary to protect the safety of the aircraft and those aboard. Very senior air traffic control bureaucrats have told me nothing their controllers say to a pilot can ever be enforced as an order to do anything.

          Congress stands in the way of nothing the airline industry demands, by the way. Remember the aftermath of 911? How long did it take the airline industry to get its legal immunities and multi-billion dollar bailouts? The emergency equipment wasn't even off the scene before that happened. Congress responded at about the same speed it used to declare war after Pearl Harbor. It may have taken them a day or two longer because all the planes were grounded, plus they had to draft some legalese.

          Nationwide, I don't think any judge has ever enforced any environmental regulation against the airline industry. I doubt any such case has ever been allowed a day in court. I could be wrong about that. It's what I heard when I checked around among aviation noise activists in the late 90s. Nobody could think of any case which had actually been tried, despite widespread attempts across the nation.

          My guess is that right now today—after Josh Blackman's victory dance—if an airline captain decided to the contrary that the safety of the aircraft, crew and passengers required everyone to mask up, and the captain had a way to enforce it, no one would say he did wrong. Possibly his employer would say afterward, "Please, don't do that again."

          Thank heavens my wife managed to get in a flight to see her family three weeks ago, whom she had not seen in more than two years. At age 75 and immune compromised, I will not be getting on an airplane likely ever again, unless the pandemic lets up on its own.

          1. If you think a person suing the captain for handcuffing him for refusing to assault another person would lose a civil right suit, you have a very limited understanding of the laws in this country.

            1. zztop8970 — Nope, I have a first-hand understanding of what happens to suits which would put a judge in the position of second-guessing anything which has even the most remote possibility to affect airline safety. Whatever you think the law says, suits like that go nowhere.

              1. Putting it bluntly, if you think an airline pilot would not lose a civil rights suit for one of the hypotheticals I described above (e.g. forcing a passenger to commit a crime), you are out of your mind..

  5. The issue would have been moot if the administration had not extended the mandate an additional 15 days. If the mandate is not extended again then it will likely expire before the appeals are decided, which will leave the issue undecided and the possibility mandates can be reimposed in the event of another wave.

    1. That seems to be the best hope for the government here - appeal and look to moot the case. The political winds are clearly blowing against mandates right now.

      1. That seems to be the best hope for the government here - appeal and look to moot the case. The political Science winds are clearly blowing against mandates right now.

        1. There is no difference between politics and The Science (tm)

        2. "Science winds "
          Have a look at the sharp rise in new cases in the US. The NYT quotes +39%.
          There are no "science winds" except escaping from the mouths of blowhards.

  6. Hey, VC editors: would you please post a link to a better version of the case document? This link is to some kind of protected, image-only PDF. As a consequence, you can't copy and paste any part of it.

    That really stinks. If posting non-copyable public court documents is normal procedure, it really shouldn't be. Free the electrons!

    1. Incredibly, that appears to be how Judge Mizelle uploaded the opinion into CM/ECF, so that's what you get from PACER.

  7. One section I found very interesting in the ruling was the court's finding that the CDC gave inadequate reasons for not having a normal comment and notice period. Even though the CDC took nearly a whole year to issue its regulation, it simultaneously argued that the "good cause" it had to forgo comments was because COVID was an emergency. Yeah, not buying that. I'd agree with the judge on that one.

    1. Yes, I thought the ruling explained that quite thoroughly. It included examples of other agencies going far further with their "good cause" justifications and still running afoul of the APA. It also pointed to the CMS vaccine mandate as one who did it correctly (four well-cited pages going into risks, harms, etc. vs. travel's one sentence).

    2. The judge referred to "the president" as having not thought it was a big enough deal to immediately set the mandates until February of 2021. She didn't, however, recognize the changing of the presidency. Perhaps she was still referring to Trump even in 2021?

  8. "Give me liberty or give me ... um ... er ... never mind!"

    How brave.

  9. So, immediate implications:
    (1) Airlines can continue their mandates if they want (private)
    (2) TSA probably cannot enforce the mandate at security check
    (3) Airports?

    Anyone know about (3)?

    1. Probably depends on the airport. Some are owned and operated by public entities (cities) but others are private.

      1. Even public airports might be able to enforce a state or local mandate depending on how the laws are written there. The judge ruled on the CDC's lack of authority but that doesn't seem to imply CalOSHA, for example.

      2. And the city rules are set by their or their county's department of public health.

        1. shawn_dude and Nico, I am doubtful that would work, even at a privately owned airport, if it served regularly scheduled flights. Courtesy of Congress, most local government environmental measures, for instance, are preempted at any airport that serves regular air commerce. Take a look at the Airport Noise and Capacity Act of 1990. I wish I had a nickel for every lawyer I have watched respond in astonishment while he discovered the nearly infinite reach of that one. It pretty much makes Congress the only power on earth which can do anything which might affect air transport scheduling or capacity. State and local governments are right out, and even the President looks powerless.

  10. Shouldn’t this be a long post about “who decides”
    And “judicial supremacy is bad”?

    1. I'm sure that article is coming. And the answer is (and should always have been) "Congress decides". The Executive Branch does not and should not have the authority to pass such sweepingly unilateral requirements. Maybe they should have had that authority for the first few weeks of the crisis. After that, the CDC should be required to make their case to the Legislature just like the rest of us.

      1. “I'm sure that article is coming.”

        It is not coming because Josh likes judicial supremacy when it suits him. I’m just pointing out his utter bad faith and hypocrisy.

        "Congress decides"

        Maybe they already did when they gave the surgeon general broad authority in this area?

        1. All he did was post a quick link to the decision and ask a question about how this will be handled. He made no indication of his opinion whatsoever.

          Maybe instead of knee-jerking, you ought to just wait?

          1. No. We actually don’t need to wait when Josh’s character is so well-established lol. There is a zero percent chance he criticizes this decision at all.

            1. Oh, I dunno. I wouldn't be surprised if he were troubled by the fact that a single lowly district court judge can issue an order with nationwide effect nullifying a federal regulation. (Or, then again, he might say, if it's good enough for Hawaiian judges, it's good enough for Florida judges.)

        2. Given that Congress also said to the Executive Agencies "you have to follow the APA", the answer is pretty clear that they did not give the surgeon general authority this broad. And that's before adding the non-binding-but-still-credible quotes from all the actual members of Congress explicitly talking about overreach. Sure, it would be nice if Congress started more explicitly repudiating some of these agency decisions and/or explicitly reined in the bureaucrats. But holding them accountable to the APA is at least a step in the right direction.

          1. If Congress cannot blame bureaucrats, what's the next best scapegoat for them to use while avoiding their jobs?

      2. I'm sure that article is coming.

        Oh, I have no doubt that we'll have five or six comparably vapid posts locked and loaded by the time Prof. Blackman's flight lands, to be followed by a 150 page panegyric published in a sixth tier law review.

        1. And that panegyric will explain why he did not get a 1st class upgrade on the flight.

    2. I will be mildly interested to see what Prof. Adler has to say (if he chooses to weigh in).

      I don't always agree with him, but I do respect his knowledge of administrative law.

      1. At the very least you’ll get an analysis from someone who isn’t a dumbass routinely operating in bad faith while thinking they’re some profound legal thinker.

    3. Isn't (at least part of) this decision not about a judge deciding, but about the judge telling the CDC that there are procedures they are required by law to follow to mandate their decisions, and they didn't do that. Congress decided those procedures, the judge is just enforcing them.

      1. She spent a lot of time avoiding the obvious context of Trump trying to limit the bad news coming out of the CDC while he was busy telling people the pandemic was made up and would disappear after the election. She didn't acknowledge that one of the first things Biden did was remove the CDC's gag and let them do their jobs. To this young judge, it was as if the presidency hadn't changed at all and there was only one president who didn't think the whole COVID thing was a big enough deal to warrant any sort of extra effort.

        987,000 dead Americans later...

        1. She ruled on the the merits of the case before her, which is if the CDC acted within its authority. Trump's actions (or your delusions about them) have nothing to do with it.

        2. What does any of that have to do with the procedural requirements of the APA?

  11. Update: TSA won't be enforcing the mandate

    https://thehill.com/policy/transportation/3272328-tsa-not-enforcing-travel-mask-mandate-after-judge-strikes-it-down/

    Any airline that continues to enforce is now doing so as airline policy, not federal.

  12. You need to update your update: UPDATE: UNITED AIRLINES WILL NO LONGER REQUIRE MASKS ONBOARD https://liveandletsfly.com/judge-strikes-down-mask-mandate/

  13. I am genuinely curious - to the people who want to keep masks in airplanes (or classrooms, or indoors, or outside) - what are you waiting for and what do you think is going to happen?

    -Do you think Covid will be eradicated at some point, because there is a broad scientific consensus that this is impossible to accomplish now?

    -Do you think that if everyone 'just behaved' or we had 'hard lockdowns' Covid would go away, because even hyper-compliant cities in the US and Europe have never achieved even local elimination, and even China's constantly policed hard lockdowns aren't working in Shanghai.

    -Are you worried about Long Covid? If so, getting vaccinated and boosted makes sense, but since we're not eradicating it and no NPIs have proven effective, at least against current variants, this isn't going to change in the future.

    -Are you waiting for your N'th vaccine booster? If so, what N?

    -Do you think mask mandates are essential for vulnerable people? If so, consider the fact that, with the exception of short-duration immunosuppressants, people only get more vulnerable over time, masks greatly diminish the ability to connect to other people on an authentic emotional level and since Covid has an indefinite duration, there wont be a better time later. Or, if there is a better time later, why?

    -Do you think people as a whole will tolerate mask mandates forever, even after highly effective vaccines and antivirals are available? This doesn't seem to be the case.

    A refrain I saw a lot in the pandemic has been "2019 isn't coming back." Well, maybe we need to introduce a new variant: "2021 isn't coming back." The appetite for lockdowns is long gone and isn't coming back. Interest in mask mandates and even mask culture is coming to a close fast.

    Over the last few months almost everyone, no matter how careful, has gotten Omicron or known many zealously kn95 masking people get Omicron...and if they were vaccinated and boosted they were fine.

    Covid in 2022 is just not Covid in 2020 - what was a catastrophe disrupting life in a bunch of major cities, most notably NYC, is so clearly not now.

    So what's the end game here?

    1. You'll never know and and would never recognize it.
      But you are correct about one thing. People are sick of the precautions. It is everyone for themselves.

  14. Do you think mask mandates are essential for vulnerable people? If so, consider the fact that, with the exception of short-duration immunosuppressants, people only get more vulnerable over time, masks greatly diminish the ability to connect to other people on an authentic emotional level and since Covid has an indefinite duration, there wont be a better time later. Or, if there is a better time later, why?

    WhatWouldFoucaultSay? — Yes, mask mandates, properly equipped, supplied and targeted, would help greatly among vulnerable people—probably more than 10% of the population.

    Speaking as a 75-year-old person who gets monthly immune suppression infusions to manage a genetically mediated autoimmune condition, your comment reads more like a taunt than like reasoned discourse. A thread tacit beneath your advocacy comes through to me as, "All right! We've got the majority, we've cowed the politicians, and now we can shed trivial inconvenience, even if it utterly screws up the lives of more-vulnerable people." Excuse my asperity, but I am really sick of being left alone, with not a lick of protection from public health policy beyond, "Ask your doctor." Who being a very good rheumatologist responds with despair when I ask.

    Over the last few months almost everyone, no matter how careful, has gotten Omicron or known many zealously kn95 masking people get Omicron...and if they were vaccinated and boosted they were fine.

    Yeah, except that more than 500 Americans are dying every day. Which means every week is deadlier than the worst weeks during the Tet Offensive, the deadliest part of the Vietnam war for Americans. Shortly the nation will pass 1 million dead—about 15 times the total from Vietnam, in about 25% of the time—so a death rate about 60 times as fast as the Vietnam War. I wish it were remarkable to find someone who seriously thinks of that as a tolerable status quo for the nation, but I do understand you are in plentiful company. Nevertheless, I doubt you do seriously think that. Maybe more an optimal status quo for you, given favorable personal circumstances.

    With cases again on the rise, it will be unsurprising if death rates also start going back up. So maybe you should back off on the minimizing. And by the way, my doctors tell me I can't count on being fine.

    Do you think that if everyone 'just behaved' or we had 'hard lockdowns' Covid would go away,

    I think if everyone behaved, and we timed one or two nationwide hard lockdowns not for the peaks of surges, but for the Covid-case minima, future Covid cases would be a tiny and more manageable fraction of what we will get on our present course. Testing travelers rigorously as they entered the U.S. would enhance control.

    That would also do a hell of a lot more to get the nation back to a normal economy than trying to pretend normalcy while 10% of the population are in enforced economic isolation. And meanwhile the others ride the Covid rollercoaster, with the ones who care about compromised family members backing in and out of economic activity according to case counts. To me, it looks like for the sake of avoiding trivial mask inconvenience, you are talking about indefinitely tolerating a notably hobbled economy.

    Do you think people as a whole will tolerate mask mandates forever, even after highly effective vaccines and antivirals are available?

    I don't think, "forever," is an issue. All deadly pandemics fade toward background noise. This one may do so shortly. But it hasn't done it yet. No one can yet rule out a return in a yet-more-fearsome guise. And by the way, Congress cut the highly effective antivirals from the budget.

    I think some people will tolerate mask mandates long enough on their own, and others will tolerate mask mandates they are compelled to tolerate—as they had been doing on airliners. You may think otherwise. Of course a public health system supervised by cowardly politicians won't test the question.

    Let me put a question back to you. How about N-95 mask mandates on airliners, public transportation, and in unavoidable commercial infrastructure, such as grocery stores, pharmacies, and health care facilities? With voluntary private mandates by businesses which chose to require them. Even that little bit would do a great deal to improve life for the 10% of the population this nation is currently kicking to the curb. Probably not tolerable for you, right?

Please to post comments