The Volokh Conspiracy

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Appellate Court Dismisses Case Challenging CDC Transportation Mask Mandate Because it has Become Moot

A case that began with a bang ends with a whimper. The issue of whether the CDC has the power to impose mask mandates remains unresolved.



Last year, federal district Judge Kathryn Kimball Mizelle attracted widespread attention when she issued a decision holding that the Centers for Disease Control mask mandate for airline flights, airports, and other transportation settings was illegal. The ruling was much criticized by legal commentators and by mandate advocates who felt the CDC rule was an essential tool for combatting the Covid-19 pandemic. But mandate opponents celebrated, and some passengers cheered when they heard about the ruling in mid-flight and were able to remove their masks.

Yesterday, the case that began with a bang ended with a whimper, as the US Court of Appeals for the 11th Circuit dismissed the Biden Administration's appeal of the district court ruling because of mootness:

A Mandate that, as we write, no longer exists. On April 10, 2023, President Biden signed a joint resolution of Congress that terminated the national emergency. Act of Apr. 10, 2023, Pub. L. No. 118-3, 137 Stat. 6 (2023). More relevant to this case, on May 11, 2023, the HHS Secretary's declaration of a public health emergency expired. See End of the Federal COVID-19 Public Health Emergency (PHE) Declaration, Centers for Disease Control and Prevention (May 5, 2023), Therefore, even had the district court sided with the government, the Mandate would have expired by its own terms on May 11, 2023. See 86 Fed. Reg. 8025-01 at 8030 ("This Order will remain in effect . . . until the Secretary of Health and Human Services rescinds the determination . . . that a public health emergency exists.").

This development raises the jurisdictional question of mootness—that is, whether "the issues presented are no longer 'live' or the parties lack a legally cognizable interest in the outcome." Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013)….

The answer to that question is, quite clearly, yes. Appellees initiated this litigation in order to have the Mandate 1) declared unlawful and 2) set aside. Regarding Appellees' second objective, coming on the heels of a joint resolution from Congress and following the HHS Secretary's conclusion that the public health emergency has ended, the Mandate has expired on its own terms. As a consequence, there is no longer any Mandate for us to set aside or uphold. Indeed, even if we were to decide against Appellees and reverse the district court—as the government desires—there would be no Mandate to reinstate.

Regarding Appellees' first objective, we do not think asking for a declaratory judgment that the Mandate is unlawful saves this case from mootness. If it did, our case law would be turned on its head. That is, "[a]bsent exceptional circumstances, a challenge to the enforcement of a statute [would not become] moot when that law is no longer effective." Aaron Private Clinic Mgmt., 912 F.3d at 1335.

I'm no mootness expert. But this analysis seems right to me.

Because the case is moot, the 11th Circuit also vacated the district court ruling, as longstanding precedent usually requires in these situations. That means this litigation will not set any precedent on the question of whether the CDC has the power to impose mask mandates in order to try to combat the spread of the disease. If a new Covid-19 variant or some other viral threat leads to a new transportation mask mandate, the issue of the CDC's powers will likely be litigated again from square one.

Although I hate mask mandates and was happy to see this one end, I thought there were serious flaws in Judge Mizelle's reasoning. There were some plausible legal arguments against the CDC mandate; but many of those she advanced were really weak. Her ruling also came in for severe criticism from other commentators skeptical of mask mandates, such as Andrew McCarthy of the National Review, and David French and Sarah Isgur of The Dispatch.

When the Trump and Biden Administrations used the very same law to impose a nationwide eviction moratorium, the Supreme Court rightly ruled the CDC lacked the power to do so. But the transportation mask mandate was a much closer case.

The Biden Administration's handling of the issue also was not above criticism. Strikingly, they chose not to ask the appellate court to stay Judge Mizelle's nationwide injunction against the mandate. That's why the injunction remained in effect for over a year, up until yesterday's decision.

To my mind, this choice raised serious questions about whether administration officials genuinely believed the mask mandate was an essential public health measure saving large numbers of people from death or serious illness. If they did believe it, surely they should have tried to reinstate the mandate as soon as possible!

The administration's real priority may have been to preserve the CDC's power. By stringing out the case until it became moot, they avoided a precedent that might have tied their hands in the future.

In a sense, both the plaintiffs challenging the mask mandate and the Biden Administration ended up winning. The plaintiffs secured an injunction that put an early end to the mask mandate. The administration managed to avoid setting a precedent limiting the CDC's authority. Airline passengers who hate wearing masks (myself included!) won some extra months of mask-free flying.

But this sequence of events has also left a cloud of uncertainty over the scope of the CDC's power to set mask mandates. That uncertainty could come back to bite us in the future.