Biden Administration Says It May Appeal Public Transportation Mask Mandate Ruling

The Federal District Court judge in Tampa who struck down the mandate — Kathryn Kimball Mizelle — put forward a sharply constrained interpretation of the C.D.C.’s legal authority under the Public Health Service Act of 1944. If her view prevailed, the agency’s hands would be tied in future public health crises.

But a ruling by a district court judge is not a binding precedent. Appealing the matter would carry the risk that the court that oversees her — the Court of Appeals for the Eleventh Circuit in Atlanta — could issue a ruling that constrains the agency’s future conduct at least in its region, the Southeastern United States. A majority of the judges on that circuit are also Trump appointees.

And above it, the Supreme Court has a six-to-three conservative majority. In January, it blocked a Biden administration edict that large employers require workers to get vaccinated or submit to regular testing. (On the other hand, the court has permitted military officials to require service members and reservists to get vaccinated; it also upheld a federal mandate requiring health care workers at facilities receiving federal money to be vaccinated.)

Some supporters of the mask mandate have viewed an appeal as risky.

“As tempting at it is to appeal it, because it’s a ridiculous ruling, the bigger issue is that you need to reserve the ability for the C.D.C. to act in case we have a big outbreak in the fall or the winter,” said Andrew Slavitt, a former senior health adviser to the president who helped run the administration’s Covid-19 response.

“Trump appointed 234 federal judges,” he added, “and if you end up there or in the Supreme Court, you could really damage your ability to respond to the pandemic in the future.”

As a matter of politics, support for mask mandates has fallen in opinion polls as it has become clearer that healthy people who have been vaccinated and boosted — as well as those who remain unvaccinated but have survived a bout of Covid-19 — are generally at lower risk of experiencing severe or life-threatening symptoms if they get infected.

“The country clearly wants to move on,” said David Axelrod, a Democratic strategist who served as senior adviser to President Barack Obama. “Mandatory masking is a volatile issue. So my instinct is that the path of least resistance would be to stand down, on the grounds the clock is quickly running out anyway.”