The White House is facing a politically charged decision on whether to appeal a Trump-appointed judge’s decision to block a federal requirement to wear masks on public transportation.
Officials have stressed throughout the COVID-19 pandemic that health experts will guide decisionmaking on how to address the virus. But as the White House has in recent weeks sought to move toward more of a sense of normalcy, appealing the ruling could be politically unpopular and undercut those efforts.
Even before the ruling, the order was set to expire on May 3, and many health experts thought the Centers for Disease Control and Prevention (CDC) at that point would choose on its own not to renew it, unless a major new surge was underway.
On the other hand, some health and legal experts warn that allowing the precedent striking down the order to stand could handcuff the CDC’s response in future crises, like if a dangerous new variant arose.
The administration notably did not immediately announce it would appeal, and is now deliberating on whether it will.
Lawrence Gostin, a leading public health law expert at Georgetown University, said the administration should appeal to protect the CDC’s power in a future crisis, and that the ruling overstepped by limiting basic CDC public health authority.
“My biggest worry is that this decision handcuffs the CDC,” he said.
But he acknowledged the arguments the administration has to weigh on the other side, including lobbying from airlines, who want the order to end.
“They’re under a lot of public pressure and industry pressure,” he said, noting that the “CDC was likely to be lifting this mandate on May 3.”
There is also some risk that an appeals court would affirm the Florida judge’s order, giving the negative ruling for the administration the stamp of approval from a higher court, though the Florida judge’s ruling already applies nationwide.
White House press secretary Jen Psaki said the Department of Justice is still reviewing the case and could take a couple of days before deciding on an appeal.
Asked about videos of travelers happily taking off their masks in airports, Psaki said on Tuesday that political considerations were not a factor.
“We don’t make these decisions based on politics or based on the political whims on a plane or even in a poll,” she said.
“But I would note in polls in data, lengthier data, there are still a lot of people in this country who still want to have masks in place,” Psaki added, citing parents with young children who aren’t eligible to be vaccinated or those who are immunocompromised.
Polls present a mixed picture. A Kaiser Family Foundation poll conducted last month found 51 percent of those surveyed supported letting the requirement expire in mid-April as originally scheduled, while 48 percent supported keeping it in place.
Brad Bannon, a Democratic strategist, said he did not think the administration would appeal, noting the mandate was set to be revisited in early May anyway.
But he said it would be smart for them to “err on the side of caution,” despite the short-term political considerations, in the interest of preventing a new surge that would be damaging both substantively and politically.
“There’s a delicate balance here,” he said. “Every time you kind of let up on the restrictions you have another resurgence.”
The White House has in recent weeks shifted into promoting a sense of normalcy. It has hosted large events with dozens of unmasked guests and resumed annual activities like the Easter Egg Roll, and Biden and other staffers have gone maskless for the most part around the building.
The shift followed a slew of Democratic governors around the country who eased mask requirements after the wave caused by the omicron variant had subsided.
One Democratic strategist close to the White House pointed to those state-level decisions as evidence that many in the party are trying to distance themselves from mask mandates in the lead-up to the midterm elections.
From a public health perspective, experts were split on the merits of repealing the mandate.
But some noted it was probably going to expire soon anyway, and that wearing a high-quality mask like an N95 or KN95 offers protection even if others are unmasked.
“If you wear a good mask and are fully vaccinated and boosted, you’re safe enough that I think the case for the mandate has gone down,” said Bob Wachter, chair of the department of medicine at the University of California-San Francisco.
He said his real worry is that the precedent of the ruling limiting the CDC’s power is “going to get us in terrible trouble with the next variant.”
Jerome Adams, who served as surgeon general during the Trump administration, noted some families might have to take public transportation to get to work and could be forced to expose themselves to maskless, infected individuals. “This isn’t just about planes,” he tweeted.
Andy Slavitt, who helped coordinate the COVID-19 response for the first months of the Biden administration, suggested some at-risk individuals will be put in danger through no fault of their own.
“If airlines can ask us not to eat peanuts on board if there is someone with a peanut allergy, why won’t they ask us to wear a mask if there’s an unvaccinated 4-year-old or cancer patient on board?” Slavitt tweeted.
