Biden appeal of mask mandate backfires

Criticism has been flowing toward the Biden administration’s decision to appeal a federal judge’s decision to strike down the mask mandate for public travel with legal experts saying the administration faces risk if they move forward with the appeal.

According to The Hill court watchers claim that the conservative-leaning Supreme Court could use the Trump-appointed judge’s view of the government’s public health powers could create a precedent that the administration isn’t happy with.

“I think that this is fairly radical administrative law,” Michael Dorf, a professor at Cornell Law School, said of the district judge’s Monday ruling. “But it’s really radical administrative law for which there might be five votes in the Supreme Court.”

This question facing the administration comes after Tampa-based U.S. District Judge Kathryn Kimball Mizelle ruled that the mask mandate for travel on planes, trains and buses overreaches the authority of the Centers for Disease Control and Prevention (CDC).

White House press secretary Jen Psaki seemed to attempt to downplay the political dimensions of the administration’s dilemma, saying Tuesday that whether the administration decides to appeal the ruling would not be based on “political whims.”

However, according to legal experts, there’s more at risk here than whether the next flight Americans take requires them to wear a face covering.

“There’s a risk that if you appeal, you turn what is a bad judgment on a policy you’re phasing out anyway, but that sets no precedent, into the law of the land that is now going to constrain you in other cases,” Dorf said.

Penn State University law professor Daniel Walters criticized the district judge’s Monday mask mandate ruling saying that it gave an unduly narrow reading of the CDC’s authority:

“The problem here is that the Supreme Court is not stepping in to do quality control. There are a variety of reasons for that … but the biggest reason seems to be that a majority of the Supreme Court justices agree with the bottom line,” Walters said. “In other words, they might not get there the same way that the district court did, but they would still get there, so they’re not going to disturb even a highly problematic opinion.”