WASHINGTON — Does the Biden administration really want and intend to fight for a higher court reversal of the ruling this week striking down its mask mandate on airplanes, trains and other public transportation — as its high-profile appeal of the case seemed to suggest?Legal specialists raised another possibility on Thursday: The administration may instead be buying time and thinking about trying to erase the ruling — a move that would allow it to protect the powers of the Centers for Disease Control and Prevention to respond to a future crisis — but without reviving a mask mandate.The tell, several outside specialists said, was that the Biden administration was letting days pass without seeking a stay of the ruling, the step that could most immediately resurrect the mask requirement.“Basically, it is giving up on the mask mandate,” said Lawrence O. Gostin, a Georgetown University professor of global health law who advised the White House on the case. “The administration’s goal is a legal principle, which is to ensure that the C.D.C. has strong public health powers to fight Covid and to fight future pandemics. And it appears much less important to them to quickly reinstate the mask mandate.”In fact, the administration has shifted away from masks as critical to the pandemic fight for two months. President Biden and other top officials have increasingly presented masks as a matter of personal choice, not federal policy.The requirement to mask on public transportation, put in place soon after Mr. Biden took office in January, has been the exception. It was set to expire May 3, but with rising infections nationwide, the C.D.C. had left open the possibility of extending it again before the federal judge, Kathryn Kimball Mizelle of the Middle District of Florida, struck it down on Monday.Amid fluid deliberations about what to do, Karine Jean-Pierre, the principal deputy White House press secretary, told reporters that the administration was appealing because “the C.D.C. must have the essential public health authority” to make critical decisions now and during future health crises.“That is what is at stake right now,” she said.Because the case turns in part on whether the C.D.C. was justified in enacting the mandate as an emergency measure that offered no room for public notice or comment, it is notable that the administration appealed the ruling while not seeking an immediate stay. The failure to try to keep the mask order in place could undercut the government’s argument that there was an urgent need for the requirement; otherwise it would have tried to keep it in place, legal specialists say.If the government really wanted to fight its appeal all the way to a decision on whether to overturn Judge Mizelle, said Stephen I. Vladeck, a University of Texas at Austin law professor who specializes in federal courts, “then they totally botched this, because it’s Thursday and the ruling was on Monday and they haven’t done anything about it yet.”But Mr. Vladeck contended that the failure to seek a stay may make sense if the Biden legal team was instead trying to protect the C.D.C.’s power with no real intention of trying to get a higher court to reinstate the mask mandate.He pointed to an obscure legal doctrine under which if a case is on appeal when the dispute becomes moot for reasons unrelated to the litigation, an appeals court can remand it to the district court with instructions not only to dismiss the case but to vacate the district court’s ruling — meaning wipe it from the books.The government, he said, may be giving itself that option after the mandate’s planned expiration on May 3.ImageA mixed of the masked and maskless at Hartsfield-Jackson International Airport in Atlanta after the mandate was overturned.Credit...Dustin Chambers for The New York TimesIn her ruling, Judge Mizelle put forward a cramped interpretation of the agency’s regulatory powers to protect against the interstate spread of infectious diseases. Both she and a majority of the appeals court that oversees her court were appointed by President Donald J. Trump, whose legal advisers openly promoted their search for potential judges who would be skeptical of the power of regulatory agencies.Asked by a reporter on Thursday why the Justice Department had not sought an immediate stay, Attorney General Merrick B. Garland called that “a tactical strategy question.” Giving no further explanation, he said the matter would be resolved by litigators in the Justice Department.But, he added, “our reason for appealing is we believe that the C.D.C. has clear statutory authority for the mask mandate, and the C.D.C. has assessed that it is necessary for the health of the American people — particularly the traveling public.”Michele Goodwin, a lawBy: Charlie Savage and Sharon LaFraniere
Title: The U.S. Appealed to Reinstate Masks. But Is It Seeking to Win?
Sourced From: www.nytimes.com/2022/04/22/us/politics/biden-legal-strategy-mask-mandate.html
Published Date: Fri, 22 Apr 2022 09:00:17 +0000
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