Why hasn't any state challenged the CDC's transportation mask order?

Throughout the COVID-19 pandemic, the CDC has engaged in unprecedented levels of overreach, ranging from cruise ship restrictions to an eviction moratorium.  However, one element hasn't drawn as much attention despite possibly being the widest-reaching of them all, and that's the federal transportation mask mandate.

We'll start with the history of the CDC's orders.

On March 14, 2020 — before any state locked down, and before the "15 days to stop the spread" began — CDC issued a No-Sail Order for cruise ships.

In October, this was replaced by a Conditional Sailing Order that allowed cruise ships to operate with intense restrictions and limitations.

Even though they were struck down after a state sued (Florida v. Becerra), these orders were arguably on firmer legal grounds than the CDC's other orders, as cruise ships are traditionally an area of federal jurisdiction.

This brings us to the CDC's other, wider-reaching orders.  At the beginning of the pandemic, the CDC avoided directly enacting domestic restrictions (such as gathering restrictions and mask mandates), leaving these issues to the states.  Unfortunately, that changed on September 1, 2020, when the CDC issued an order imposing a moratorium on residential evictions.  This represented the CDC's first wide-ranging domestic restriction and, despite eventually being struck down by the Supreme Court, it would open a Pandora's box of federal overreach.

A professor who specializes in public health law theorized that the CDC had drafted the order and other possible orders, like a mask mandate, and a higher-up approved the eviction moratorium as a backdoor way, ironically enough, to usher in deregulation.  Around a month later, this theory was proven right when it was revealed that the CDC had drafted, and wanted to issue, a transportation mask order.

Then, a few weeks later, the CDC posted guidance recommending that people wear masks specifically when traveling on any form of transportation anywhere in the U.S. or while on the premises of any "transportation hub."  This guidance looked much more like a mandate than any of CDC's previous guidance; however, it was voluntary.

Unfortunately, the guidance wouldn't remain voluntary.  A day after his inauguration, President Biden issued an executive order instructing federal agencies to require masks on various transportation modes.

Biden had previously stated that he couldn't issue a nationwide mask mandate except for federal properties and interstate transportation.  However, this executive order called for face coverings to be required on "all forms of public transportation" — not just interstate ones — implying that the forthcoming mandate would illegally claim jurisdiction over intrastate transportation, too.


Image: The masks on the school bus go round and round.  YouTube screen grab.

Sure enough, on January 29, 2021, the CDC issued an order requiring people to wear masks when traveling on any form of transportation (even entirely intrastate) anywhere in the U.S. or while on the premises of any "transportation hub."  (The associated TSA security directives are merely an enforcement mechanism for the underlying CDC order.)  Like the CDC's other orders, violations of the mask order are punishable by a $100,000 fine and/or one year in jail for violations by individuals and a $250,000 fine for violations by organizations, per 42 CFR 70.18.

Now that we've explained the history, let's explain what's wrong with the mask order.  First off, the order exceeds the CDC's statutory authority under Section 361 of the Public Health Service Act (42 USC 264).  The order also violates the 10th Amendment by claiming jurisdiction over entirely intrastate surface transportation, such as rideshares, subways, private buses, public buses, and even school buses.

Similar arguments were successfully used to strike down the eviction moratorium.  Despite this, no state attorney general, governor, school district, or transportation provider — except for one rideshare driver — has challenged the CDC's mask order.  This is concerning and disappointing.

Likewise, while some states have spoken out against forced masking in general, they've all failed to take any action against the CDC's mask order, even though it directly affects people in those states.  For instance, Miami-Dade Transit states that "Per federal mandate, face masks remain a requirement for any transit rider, both inside of a Miami-Dade Transit or STS vehicle and at a Miami-Dade Transit facility, including at bus stops and on station platforms."  Despite this, the state of Florida has not acted against or even spoken out against the CDC's mask order.

By failing to challenge the CDC's mask order despite the favorable legal precedent, states are complicit in the forced masking of riders on public transportation as well as students on school buses.  Furthermore, there are places, like England (but not the rest of the U.K.), that have lifted mask mandates including on public transportation.  This means that people in England are currently subject to fewer restrictions than people in Florida, Texas, and South Dakota.

Random Person Fire Alarms is a pseudonym.

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