Last Friday, on April 29, federal district court Judge Paul G. Byron in Orlando, Florida, ruled that CDC had the authority under Sec. 361(a) of the Public Health Services Act (PHSA) to issue a mask mandate for transportation, including airplanes and trains, and transportation hubs, including airports, also upholding the rule requiring testing before returning to the United States from a foreign country. This contrasts with the April 18 decision of federal district court Judge Kathryn Kimball Mizelle in Tampa, Florida to strike the mandate. Judge Mizelle issued a nationwide injunction, meaning the mask mandate, was lifted across the country before it was set to expire on May 3.

One key issue where the two judges disagreed was whether the application of the major questions doctrine was appropriate when analyzing the mandate. Under the major questions doctrine, courts are not to defer to an agency’s interpretation of its statutory authority on matters of vast economic and political significance

There are no clear guidelines for what constitutes a “major question.” Allowing courts the broad authority to determine what is “major” has the potential to transfer policymaking power from the federal government to the courts. Public health authorities must act quickly during public health emergencies, and different emergencies necessitate different tools. It is not feasible for Congress to specify every action CDC should take in an emergency, and so a broad application of the major questions doctrine undermines the ability of the federal government to act, especially concerning during a pandemic.

In her opinion, Judge Mizelle determined the application of the major questions doctrine was appropriate because the mask mandate “has a significant effect on the economy.” Judge Byron, on the other hand, pointed to the lack of financial burdens the mask mandate placed on travelers, determining that it was not a major question necessitating “explicit congressional delegations of power.”