The federal judge who on Monday struck down the CDC’s mask mandate in airports, airplanes and other public transit did President Joe Biden and the Democratic Party a favor.
This lingering non-pharmaceutical intervention, at a time when mask rules have been dropped in virtually every other context (including in the US Capitol Building) has become an embarrassment at a time when the country has otherwise moved on from so-called NPIs.
The basic problem is that the rule itself was issued by the Centers for Disease Control and Prevention, which is a scientific agency — and a conservative one at that. CDC guidelines suggest, for example, that nobody should eat rare steak or runny eggs, and that a woman should not have more than one alcoholic drink a day.
The science behind those calls may be sound. But they are sharply at odds with the habits and values of huge numbers of Americans. Fortunately, they do not have the force of law. Alcohol regulations are made by state legislatures, which ideally will be guided but not controlled by science as they make laws about public health.
By the same token, a rational assessment of US society would conclude there’s no reason for a government-enforced mask mandate in airports when there isn’t one at hockey arenas. The only reason for it was that airports are regulated by the federal government rather than the states, and the federal government’s regulatory authority rested with the CDC rather than a more political agency such as the Department of Transportation.
In reality the White House should have put its foot down and lifted the rule weeks ago. But its reluctance to meddle with a scientific agency is understandable. At the same time, scientifically speaking, it’s always going to be the case that everyone wearing a mask will be at least a little bit safer than everyone not wearing a mask. The problem is that mask-wearing is annoying and socially divisive, with efforts to enforce the rule generating clashes between passengers and airline staff.
Of course none of this is a proper legal reason for striking down the order, and it may not survive on appeal. Still, observers such as Slate’s Mark Joseph Stern, who described the decision as the act of a “power-drunk juristocracy” that no other country would tolerate, should develop a more nuanced view of democratic legitimacy.
The US Senate took a vote last month to overturn the mandate and it passed 57-40, with a number of Democrats breaking ranks to join a unanimous Republican caucus. If it came to the floor of the House for a vote, it would likely pass there, too. But Speaker Nancy Pelosi is under no particular rush to hold a vote that will divide her caucus and result in an embarrassing defeat for an administration she supports.
So the judge — a Trump appointee who is surely no fan of Biden, Pelosi or their party — may have succeeded in getting an awkward topic off the agenda. For that, Democrats ought to be grateful.
Meanwhile, for more Covid-cautious Americans, the CDC ought to be trumpeting the message that one-way masking works to protect users against the virus as long as you are wearing a high-quality mask. And with the PPE supply crisis long past, it would be smart for the Biden administration to ensure that anyone who wants a high-quality mask can get one. Others — in particular congressional Democrats, who can now avoid a wedge issue — can breathe easy.