Judge Overturns Transportation Mask Mandate

A federal judge has overturned the transportation mask mandate, saying the CDC overstepped its authority. The Biden administration is adhering to this ruling. It intends to appeal, but is not being loud about that.

Mask mandates are lifted on planes. This happened in-flight. Reactions from passengers and crew in flight were highly supportive.

Public health advocates naturally took a somewhat different view of events, this being a central reasonable version of their reaction.

There’s that ‘don’t change things people won’t like it’ principle again, and also citing whatever invokes the availability heuristic this week. Most importantly he collected data from this experiment, and remember that connecting to Boston via JetBlue should be an unusually liberal set of passengers.

Lifting the mandate during flights led to some great moments.

As a small point yes I do think this could have waited a few hours given that people boarded the planes with an expectation?

In future, I’d urge such folks to get P100 or superior masks, which should do a much better job on you alone than the KN95s did on everyone combined. Which was the right play before but almost no one did it, and probably almost no one will do it in the future either. In general, there are two reasons to wear a mask – you either want to be someone wearing a mask, or you want actual protection for yourself or others. Now that we no longer need to do the first one, those who want protection can do the second, which means P100 or better.

Uber has lifted its own mandate in response, as has Lyft. Some local authorities like the MTA in NYC (which includes the Subway) and NJ Transit are leaving their mandates in place, others are not.

What should we make of all this?

The Details Of This Decision Imply Bad Faith

The transportation mask mandate was already hanging by a thread. The CDC had multiple times come close to letting it expire. The CDC’s latest extension of the mandate was only for two weeks. The Senate voted 57-40 to repeal the mandate. Airlines, who have the most skin in the game, called for lifting the mandate.

The Biden administration so far held firm, as part of its ‘trust the science’ branding. This was a no-win situation for them, with inevitable heat on them no matter their decision.

Having a judge take it out of their hands does them a favor, letting them dodge blame for lifting the policy while also dodging blame for not lifting the policy. All bad outcomes can be blamed on a Trump-appointed judge that many are calling extraordinarily unqualified and can thus make the scapegoat/hero?

That’s perfect. No wonder there is no rush to appeal.

The timing of this ruling strongly implies to me that it was made in light of these facts.

Does the CDC have the authority to impose a mask mandate on the airlines? That is an interesting legal question. I do not know whether this particular rule overstepped their authority. It seems plausible that it did.

If it did, then the mandate needed to be lifted. We are supposed to be a nation of laws.

Poe’s Law for the win in the replies, I can’t tell either.

During the pandemic we got, even more than usual, into the mindset that we do not have a constitution or separation of powers or limits on Presidential or federal authority. In theory that is very wrong, and in practice it once again is being treated that way.

Consider the parallel to the eviction moratorium. The CDC decided that it was a public health issue to forcibly let people live rent free indefinitely in other people’s houses and apartments. Then Trump gave way to Biden, and what was previously allowed was not allowed. I’d strongly agree in that case that this was very much not within the CDC’s authority, but if that is true, it also wasn’t within their authority long before the courts shut down the policy.

In both cases, the court/judge seemed to make a political decision when to end a controversial policy. Whereas little had changed. If these policies were illegal, they’d been illegal before, and were allowed to continue. If these policies were legal, there’s no basis for striking them down now.

This is not a system of laws, but of men. A system of laws would follow the Litany of Tarski, something like this:

If the CDC can according to the statutes and the law mandate masks on planes, I wish to rule that the CDC can mandate masks on planes.

If the CDC cannot according to the statutes and the law mandate masks on planes, I wish to rule that the CDC cannot mandate masks on planes.

Let me not establish precedents I may not want.

In some places, judges lift mask mandates against the wishes of elected officials. In others, they impose mask mandates, against the wishes of elected officials.

Do I think it was well past time to lift the mask mandate? Absolutely.

Do I think it was well past time courts started enforcing the law and not letting ‘public health’ officials do whatever they wanted? Oh yeah. Very much so.

I still am not a fan of lifting the mandate this way and at this time in what looks like one unelected official making a policy decision over the head of another one, rather than a result of us being a nation of laws. It is a sign of deeply dysfunctional political and legal systems.

Scott Gottlieb suggests in this clip and also this second one that the reason this ruling happened is that CDC is not typically a regulatory body so they did not do the required groundwork when imposing this regulation – that this was more about whether they did this the right way than whether they can do it at all. And that it’s not purely about technical questions, they really did make policy in arbitrary fashion and then tried to impose it on everyone unilaterally:

That seems highly likely. His suggestion is that they get their ducks in a row now to avoid this decision undermining their authority. In a technical sense this seems right. In a general sense where being overruled undermines authority, it seems like their authority deserved to get undermined. The CDC is not a regulatory agency and should not be in the business of setting regulations.

In the clip he also agrees that it was time to lift the mandate, again suggesting this timing as highly suspicious.

How Much Will It Matter?

Directly in terms of airplanes themselves, the decision will matter very little.

In the initial phase of the pandemic, when the virus has not yet spread to many or most areas, controlling spread on planes and other travel matters a lot, even if it is a small percentage of overall transmission.

Once the virus has already been everywhere, that is no longer the case. An infection on a flight is not much different from any other infection.

This was by far the hottest take:

A lot of people, including a good friend of mine, called Nate out on this, categorizing this take as deeply stupid. The comments are united in ripping him a new one.

Except, it’s not stupid. In terms of direct impact, he’s right.

He is not automatically right here. There are ways for 5 hours per year to be a very big deal. However, that requires that the infections from 5 hours of being on planes could be a substantial portion of the hundreds to thousands of hours each of us spends in the presence of others. Which, in turn, requires a higher order of magnitude of infection risk while on an airplane.

That is indeed entirely naïvely plausible, since airplanes could be super risky, but it is very much not the case. Airplanes do an excellent job circulating air, and are relatively safe places to be. Your risk in the terminal and the taxi greatly exceeds your risk on the plane.

It is oddly similar to other aspects of airplanes. Flying through the air seems super risky, and often feels risky during takeoff, landing or turbulence, but as we all know by now flying is actually the safest means of travel, far safer than a car. Yet we demand ludicrously over-the-top safety precautions of all kinds.

But yes, Nate is offering a very strong intuitive argument that if not much time is spent on airplanes, probably very little of our risk comes from airplanes, and as such changing airplane rules on the margin will not much change the course of the pandemic. I believe that argument is quite correct.

The next level of impact is that the decision also applies to other transportation formats and hubs. It also applies to buses, trains and airports.

Lifting the mandate for airports is actually a much larger impact than lifting the mandate for the plane rides themselves. People spend remarkably similar amounts of time in terminals to what they spend in flight, and the terminals are riskier. Many blue states will keep the mask requirements in place, including the NYC airports I use most, which will moderate the impact somewhat. Again, the number of hours involved is not so big as to have a large impact, but it adds up somewhat. Adding in Amtrak and various other trains, and various buses, contributes as well.

The case for mandates on buses and trains, which often pack people in tight with poor circulation, is much stronger than the case for airplanes. I wouldn’t wear a mask on an airplane right now if I wasn’t forced to, but would for some buses and trains.

The next level of impact is on mask wearing in situations not technically covered by the ruling. An example that got driven home to me right away were the New York Subways. The federal mandate is gone, but local mask requirements remain in place. Yet many chose not to respect that. Within a day of the verdict, at least a third of passengers I observed were no longer wearing masks, as opposed to a much smaller portion before. That in turn gave many felt permission to go maskless, resulting in a new very different equilibrium.

This will spread out into other situations that have nothing to do with transportation. The public will interpret this as ‘no more mask mandate’ more generally. If you don’t have to do it on an airplane, a judge said so, then that is the gold standard of where you have to do insane safety theater, so people will inevitably feel empowered to not do it other places either.

This effect very well could change the course of the pandemic, and will be difficult to prevent or reverse. Masks will more and more be an individual choice rather than required. And I am totally fine with that.

TSA Delenda Est

Masks at this point were a highly inefficient thing to require of passengers, but if they don’t pass a cost-benefit analysis, what else doesn’t pass one?

Vitalik, naturally, is on board, although he doesn’t go all the way yet.

When one sees a contradiction, remember to consider both possibilities.

I can’t tell if this thread by the most pro-Covid-precaution account I follow is joking or not and I’m not convinced the author knows either, but a lot of people have noticed that if we are going to stop doing one safety procedure simply because it doesn’t accomplish anything that we should ask what else that implies. This is excellent news.

Almost the entirety of our security and safety procedures around air travel are security or safety theater. We continue to make most (although not all) people remove their shoes and show their liquids and put their laptops in distinct bins and go through cancer-causing machines built by a company with close ties to the second Bush administration, and none of that is because it is preventing anyone from hijacking or blowing up planes.

Nor is telling everyone to put their phones in airplane mode (which I’m guessing half the flight ignores at this point, since among other things it shuts off Bluetooth) or the need to have your tray table up and your seat back in the full upright position and your bag beneath the seat in front of you and having flight attendants going around enforcing it about making sure people are safe in a crash.

It would be insanely great if we periodically had judges evaluating all such requirements and regulations to see if the government had a plausible cost/benefit analysis case for why they were restricting our freedoms, the same way this judge evaluated the mask mandate. Or even better, if it happened without the need for a lawsuit.

What Happens Now?

The administration will appeal, but their heart likely will not be in it, and they won’t especially want to win.

Many will relax their mask wearing and feel better about life. Many liberal jurisdictions will keep their transportation mask mandates around for a while, but adherence will drop a lot and enforcement will be much harder. There will also be less mask wearing in other contexts.

In some places, this will lead to meaningfully more Covid in the short run, although almost none of that impact will come from infections caught on actual airplanes, since that mostly is not a thing.

In the long run, there will be no substantial change as various control systems adjust, now that we have accepted that life must continue.

Cases will likely rise in America over the next few weeks, as they were going to do that regardless. Many will blame that on this rules change, since that will be convenient.

The TSA’s other rules will be even more obviously and noticeably/visibly stupid for a while, but unless something unexpected happens meaningful change will not happen.

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41 Responses to Judge Overturns Transportation Mask Mandate

  1. maline says:

    Do you have a strong reason to think that the “tray table up and seatback in the full upright position” are really so useless? The official logic is that if the plane needs to be evacuated, these arrangements will cut the time needed to get everyone out by a big factor. The claim is that fast evacuation scenarios are not all that uncommon, because most failures happen during takeoff and landing, when the speed and altitude are both low enough to allow for a crash-landing. Which likely causes a fire, but the people wearing seatbelts will survive is they can be removed fast enough.

    All this sounds plausible to me, but I have no real idea how to research whether it’s accurate. So do you think not?

    Either way, if they would include some of this explanation in their message it would probably do a lot to lessen the unpleasantness of the whole thing.

    • myst_05 says:

      The question is not about effectiveness per se but rather on QALYs lost due to implementing the policy vs not having it in place. If one outweighs the other, the policy should be abolished effective immediately.

      • maline says:

        Okay, have we seen anyone do that analysis convincingly?

      • Adam says:

        Maybe? What is the loss of putting up the tray tables and making sure the aisles are clear? Some mild annoyance for a few minutes 5 billion times a year – passengers don’t even lose the time, as this time is usually also being used to load baggage onto/unload baggage from the plane, so using this time for ritual is… up to 10 vaguely inconvenient life minutes?

        This seems odd to optimize for, and also the weighting would be purely subjective and so we end up back at the original problem. How much mild annoyance is equal to one fiery death?

    • Eyebeams Are Cool says:

      It’s because the seat in front of you will injure your spine a little less if you are slammed into it if both of you are upright / tray table up. Much less if you cross your arms on the back of their head rest and place your head on your forearms.

      • maline says:

        I got the explanation about evacuation speed from some flight attendant writing on Quora, not anything I can actually vouch for. Apparently the crew drills hard on the evacuation protocols, aiming to empty the plane in 90 seconds. For that you really need nothing to get in the way.
        Of course, there could be more than one reason for the rule.

    • bean says:

      If you’re looking for stupid airplane safety measures, then the obvious target is the passenger oxygen masks. They’ve literally never saved anyone, have no real expectation of saving anyone (unless the plane is over the Himalayas, then there is plenty of time to get down to an altitude that people can survive at if cabin pressure is lost before anyone suffers worse effects than passing out) and killed a bunch of people during the ValueJet crash back in the 90s.

      The other regulations make much more sense. A lot of airliner crashes are survivable, and in those cases, you want to be sure you can evacuate before smoke inhalation starts killing people. Seat belts help prevent broken legs, and clear aisles and particularly tray tables being up are obvious wins here. Yes, I suppose you could make an argument that it’s still a bad idea from a utilitarian perspective, but go after the oxygen masks first, because the calculation there is unambiguous.

      Re law, there’s a broad principle of deference to public health authorities early in an emergency, but the courts should eventually reign them in. In this case, I’m definitely of the position that they should have been more aggressive in doing so, most notably when SCOTUS didn’t order the eviction moratorium ended because it was about to expire, and the Biden Administration then extended it.

  2. Quixote says:

    The most worrying thing here is your mention that the airport scanners are cancer causing. Do you have a sense of how dangerous they actually are compared to other known risk factors? Is this something where I could change how I live my life (like how people who smoke cigarettes should quit) or is this like the small particulate matter link where you feel uneasy but its not worth leaving a city and moving to the middle of nowhere just to get clean air?

    • TheZvi says:

      They claim they fixed it, which should update you in various directions. I continue to opt out of the machines and get pat downs.

      • alchemy29 says:

        The current generation of airport scanners use non-ionizing radiation. There is no mechanism for them to cause cancer. This is not remotely controversial.

        • Atanaz says:

          This is the conclusion that I came to after a good deal of looking into this. Any reason to doubt this, besides the usual amount of skepticism that is appropriate when dealing with government/corporate bureaucracies?

        • alchemy29 says:

          @Atanaz I’m not sure how to answer without knowing what sources you’ve looked at. It’s physically impossible for millimeter wave scanners as currently designed to have any sort of health effect. Radiation of that wavelength is extremely low energy – it can’t break bonds, it can’t generate free radicals. The only effect on matter is heating, but we’re talking less than 1/100th of a degree at the amounts used. To put things in perspective, sunlight contains more energy of the wavelengths used.

      • Gullydwarf says:

        Tip: Get a Nexus membership (cheaper than GlobalEntry and TSA Pre, also makes crossing border into Canada easier); it includes TSA Pre, and then use the dedicate lane that skips that scanner (at least in the airports I’ve used in last 10 years)

    • Paul says:

      It seems like a neglible dose of radiation, less than 1% of a chest x-ray and also less than the incremental exposure from being on the flight itself. Unless one’s risk tolerance is so low as to avoid flying to limit exposure to cosmic radiation I can’t see any rational reason to worry about the scans.

      plenty of detail from a British Institute of Radiology report here – https://www.bir.org.uk/media/52443/bir_rcr_airport_security_scanner_report__2_.pdf

      • alchemy29 says:

        That’s a great resource, but I’d like to note that the backscatter X-ray machines mentioned are not used in the US. The currently used scanners use millimeter waves and you can’t compare radiation of different types. The cancer risk of millimeter wave is exactly zero because they are not energetic enough to interact with DNA (or even penetrate past the skin for that matter).

        • Basil Marte says:

          Millimeter-wave sensors are safe enough that various jurisdictions, standards organizations, car companies and their component suppliers are developing / thinking about introducing radars into the car interior. Primary intended function: detecting babies/dogs left in closed cars. (Car exterior radars for various driver assistance functions have become common in new higher-class cars in the last decade. Production numbers have gone up more than tenfold in less than ten years. Jurisdictions vary, but since component manufacturers prefer to sell the same product worldwide, as a rule of thumb exterior radars are limited to 1 mW radiated power.)

        • Paul says:

          Thanks – I assumed Zvi must have known this and was referring to the scanners that do produce some ionising radiation.

  3. myst_05 says:

    I would bet on cases going down all the way until June thanks to the weather being optimal in almost every state in May for outdoor gatherings or at least keeping windows open for ventilation. By June places like Arizona will become too hot and we’ll likely see an increase in cases in the South. Of course, we’ll still see numerous hot takes blaming the increase of cases in June on the drop of masks on planes in April.

  4. bbeck310 says:

    Zvi, you’re wrong on the timing of the court case as a matter of legal procedure. Judges can’t just strike down policies, they have to decide disputes brought by plaintiffs. In this case, the complaint was filed in July 2021, but the Plaintiff didn’t move for a preliminary injunction or push the case forward in a way that would allow the judge to decide it. The government filed a motion for summary judgment in January 2022, and the plaintiffs cross-moved for summary judgment in February. Briefing was completed on March 31, 2022.

    So as a matter of law, this judge could not have legally decided this case any earlier than April 1, and in my experience, 17 days is extraordinarily fast for a decision as detailed and researched as this one was. Given the timing, the judge may also have waited a few days to see if the government would let the mandate expire and moot the case. But apart from that, the fact that the decision came at what appears the optimal time politically really is a coincidence.

    • Eyebeams Are Cool says:

      Bbeck310 this is a good take.

      “In both cases, the court/judge seemed to make a political decision when to end a controversial policy. Whereas little had changed. If these policies were illegal, they’d been illegal before, and were allowed to continue. If these policies were legal, there’s no basis for striking them down now.”
      Sorry Zvi this is a bad take. Or maybe the seemed is doing a trials-of-Hercules level of work and it’s an indictment of how poorly our public education and popular media prepare the citizenry to understand the legal system. I’ll be the first in line to with legal realism for lots of the courts’ bullshit, but this is not what a nakedly outcome-oriented ruling looks like.

      • TheZvi says:

        You can call it a ‘fast ruling’ in the sense that it was put in front of a judge 17 days earlier, or you can say that the system successfully stalled the entire case for almost a year with no progress and avoided a ruling, then suddenly it didn’t. And you can distribute over all such legal attempts. It is of course possible the timing is a coincidence, but I would argue that what happened was that they did this when they thought they would win, and that was a function of whether they would win, and that was a function of the outcome-orientation.

        I also don’t know if Eyebeams here is saying that it’s a bad legal take that the policy was either illegal or legal the whole time, or if Eyebeams is saying that part is a good take, but that the judge would have struck this down last year and the timing was a coincidence (and that our courts are so bad that it takes a year to get a ruling). Which is… in some ways better, I suppose. In other ways, worse.

        • bbeck310 says:

          The mistake is that you’re treating something as a system that isn’t a system. A plaintiff could have tried to drive this case forward quickly, but no plaintiff tried to do that. Judges can’t decide motions or cases that aren’t brought.

          What we have here is something more like a preference cascade. When these illegal mandates we’re going into effect, they were popular enough that no one wanted to spend the resources to challenge them, except for the most egregious ones (like the religious worship cases that got to the Supreme Court in summer 2020). Mask mandates didn’t seem absurd enough to challenge until vaccines became widely available, and didn’t seem stupid enough to be worth challenging until they got reimposed in the Delta and Omicron waves.

          The interesting thing here is that even in this case, the plaintiff didn’t cause the case to get decided when it did. The government moved for summary judgment, effectively forcing the plaintiff to cross-move, and it backfired. So the timing here really is coincidental. Maybe the plaintiff should have moved for a preliminary injunction back in July 2021 when it filed the case, but we’ll never know why they didn’t.

  5. lunashields says:

    Modern airplane mode doesn’t shut off neither bluetooth no wifi btw. I fly with iphone in airplane mode all the time, with headphones and on the plane internet.

  6. Pingback: Now That Mask Rules Are Over, Can We Stop Taking Off Shoes Too? - View from the Wing

  7. Kevin Whitaker says:

    fyi NJ Transit did end its mask mandate right away — reporting on this (and the company’s website) seems to have been a bit conflicted but on trains since Tuesday they’ve been announcing it’s optional

  8. murmur says:

    One small point regarding the eviction moratorium. From March 2020 to July 2020 the CARES Act imposed the moratorium, so it was indeed authorized by law during that period. After that CDC unilaterally extended it.

  9. cumulo nimbus says:

    Was enforcement ever taken seriously on these flights? I mean if someone had the thing wrapped round their chin or left their nose exposed would someone come and tell them off? And couldn;t you just spend you whole flight nursing a bottle of water or one chocolate bar? I spent last week in Chicago, my first time in the city and my first time in the US since 2015. The mask mandate is gone except for on public transport, but 20% of people, I would say, weren’t bothering, and nor was I because I don’t wear one anymore and never have unless absolutely unavoidably mandatory. In Union station I walked directly towards and then passed police officers whilst the station announcement about masks was playing, and no-one asked me to put one on. The only place it was necessary was in a bookshop which had created its own mandate, which is their perfect right I suppose, and I couldn’t be bothered with the hassle so put the one I carried for emergencies on for appearances on entry. The point being that without enforcement the mandates are/were meaningless, and the row becomes another component of the covid culture war rather than for any sort of medical or risk-handling reason.

    A digression – Chicago, by the way, seems to be in good shape. I have recently listened to the Rogan podcasts with Michael Shellenberger describing the hellholes that San Francisco and LA seem to have become. By contrast Chicago seemed very assured, very comfortable and very content in its own skin. Admittedly the further south I went in the city was the Whitesox baseball park.

  10. greg kai says:

    I have doubts about the safety of an airplane cabin wrt respiratory disease. Sure, both flight companies and aircraft manufacturers claim that the air is filtered efficiently by very good, well maintained filters, and I have no direct reason to believe they are lying. But I used to air travel quite often and, besides allergies, am not often ill, respiratory or otherwise, at least if i am not exposed to overenthusiastic use of air conditioning (like you often get in tropical countries)
    Still, out of a long flight I very often suffer from mild respiratory issues (cough, sneezing). So something happen in there that do not happen in my day to day life…Probably the same issues you get from air conditioning everywhere, regardless of filters or sterilizers/sanitizers…Maybe it’s indirect, cold dry air makes your lungs/airtracts more sensitive to respiratory diseases you are exposed to just before or after boarding, in this case indeed wearing mask inside the plane is useless, but still, I can not believe there is no correlation between (long) air travel and respiratory disease – too many personal experiences of it…

    • TheZvi says:

      I know what you’re thinking here and I think that’s because recycling the air so often has other issues that are not about infections but rather irritations and such? Also the effects of altitude and similar. And of course the terminals were never sanitary. But I am not confident.

      • greg kai says:

        Absolutely. I am not sure if it’s recycling, or other strange characteristic (strange relative humidity given the pressure/temperature from too strong/bad air conditioning for example), but I can not believe there is no issue with cabin air: it may not contains any virus/germ directly, but at least it decrease your resistance toward germs you can catch immediately before or after entering the cabin….because getting a cold after most of my intercontinental flights would be too much of a coincidence…

    • Basil Marte says:

      Low humidity. At the ~220K temperatures at flight altitude, water has less than something like 3 Pa vapor pressure (of ~20 kPa total air pressure) if you aren’t flying though a cloud. Some auxiliary unit in the engines compresses and heats this mixture to ~300K and compresses it to 70-100 kPa total. But at this temperature, water’s equilibrium vapor pressure is ~4 kPa, so unless the plane actively humidifies the cabin air, relative humidity is less than 0.4% if I haven’t made an error somewhere.

      • greg kai says:

        Yes, that’s what I suspected, if they directly take outside air without adding some water it’s awful, count that on really bad air conditioning. If they really are doing that, recycling may be a net positive, just to make the air a little bit less dry….
        I was hoping they control both temperature and humidity (which all air conditioning system worth their price should do), but maybe the added weight, sanitary risk and possible wall condensation of the water to be added prevent them to do it. I think I remember reading something about new airplane generation (A380 and beyond) solving this issue….

  11. Daniel M says:

    Why do you advise people concerned about getting sick to wear a P100 respirator? The P in the standard means that the mask is more resistant to degradation from oil particulates, something that is not typically relevant in non-industrial settings. And as for the increased protection from a 100 series respirator over a 95 series, any improvement in protection is likely dominated by a poor fit/face seal anyway. Respirators are not designed to seal on people with any facial hair, and most people get poor seals that leak more particles around the respirator than through them. This is a very small (7 person) study on respirator fit, suggesting that many people do not receive as much protection from rated respirators as they may think.

    https://journals.plos.org/plosone/article?id=10.1371/journal.pone.0245688

    Also keep in mind that P100 disposable respirators are about $10 for a single use respirator, and reusable half mask silicon respirators are not, in my experience, allowed on airplanes. Though ironically, maybe they are allowed now that the mandate is lifted.

    • Daniel M says:

      And moreover, if you are concerned about protection for others, I am not aware of a single P100 respirator that does not have a vent.

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