This newsletter is distributed by Public Health Law Watch as part of Act for Public Health, a working group of the Public Health Law Partnership that is convening to provide law and policy research, analysis, and expertise in support of public health authority.
Cases this week:
Friday, 4/1: A Staten Island judge struck New York City’s mask mandate for children under 5, which was previously set to expire Monday. Mayor Eric Adams announced the city will be delaying the end of the mandate, and will seek a stay.
Wednesday, 3/30: A Massachusetts judge issued an injunction to stop the state from firing seven troopers who had applied for religious exemptions from the COVID-19 vaccine and been denied.
Tuesday, 3/29: Missouri AG Eric Schmitt dropped a lawsuit over Kansas City’s former mask mandate.
Tuesday, 3/29: The San Diego Police Officers Association dropped its lawsuit challenging the city’s COVID-19 vaccine mandate for employees after the city announced the approval of hundreds of exemptions for city workers.
Monday, 3/28: A federal judge granted class-action certification to US Navy members claiming religious exemptions to the military’s COVID-19 vaccine mandate. The ruling prevents blocked the Navy from separating 4,095 sailors who submitted religious exemption requests.
Friday, 3/25: The Biden administration filed a motion to dismiss Oklahoma’s lawsuit over the National Guard’s vaccine mandate.
Spotlight: Public Transportation Mask Mandate Litigation
On March 10th, the Transportation Security Administration (TSA) extended its mask mandate for public transportation, including planes, trains, and buses, as well as transportation hubs such as airports. CDC initially issued the requirement in February 2021, and the Department of Health and Human Services directed TSA to enforce the mandate, which has been extended several times, and is currently set to expire on April 18th.
Several groups have filed lawsuits over the mandate, arguing that it violates the Administrative Procedures Act and exceeds the scope of CDC’s authority under the Public Health Services Act. A key question in these cases will be the application of the major questions doctrine, in which courts do not defer to an agency’s statutory interpretation that deals with questions of “vast economic and political significance,” or that could greatly increase agency authority.
What it Means for Public Health:
The litigation over the transportation mask mandates presents yet another challenge to the ability of federal agencies, including CDC, to issue orders to protect the public’s health. It is also a further attempt to expand the major questions doctrine. If any of the courts agree with the plaintiffs, they may block the mandate. This could leave the government with fewer tools to ensure safe transportation should COVID-19 cases start to rise.
The Mask Mandate Litigation
The major questions doctrine was central to the litigation surrounding the federal eviction moratorium, in which the Supreme Court in Alabama Association of Realtors v. HHS ruled that the moratorium exceeded CDC’s statutory authority, also under the Public Health Services Act.
In fact, several mask mandate plaintiffs cited the Supreme Court’s decision in their complaints. On March 14th, a group of 16 Republican Members of Congress filed a lawsuit in the Western District of Kentucky to end the transportation mandate, arguing that the CDC exceeded its authority granted by Congress. Plaintiffs cited to Alabama Association of Realtors. They also argued that even if the CDC had authority to enact the mandate, it would constitute an unconstitutional violation of the nondelegation doctrine. Texas and U.S. Rep. Van Duyne filed a lawsuit in February in the Northern District of Texas utilizing those same arguments.
