Analysis: Biden’s White House lets Trump’s judge set mask policy for travelers

Judges making rules. This is the strange way the US government works, or doesn’t, at the moment.

In the absence of leadership or action from the White House and the US Centers for Disease Control and Prevention, Judge Kathryn Kimball Mizelle — who used to work in the Trump administration before then-President Donald Trump appointed her to the bench — is making federal policy for the country as the Biden administration sits by. After extending the mask rule last week, the administration did not immediately appeal Mizelle’s ruling this week.

It’s usually conservatives warning about judicial activism, but in this case, the partisan arguments about judges making policy are turned on their heads.

Bottom line: The federal rule for wearing masks on public transportation has not ended because of a long discourse about whether masks work and whether the Covid-19 pandemic has reached the point where they’re no longer necessary to save lives.

Mask detention. What the judge argued is that the CDC’s mask requirement for planes amounted to a form of jail for those who didn’t want to mask up.

“Their freedom of movement is curtailed in a way similar to detention and quarantine,” she wrote.

May be the right thing. What’s most incredible in this backward variation of policymaking is that ending the mask requirement, at least for now, is not concerning some public health experts.

While there is a noticeable uptick in Covid-19 infections in many parts of the country, hospitalizations and deaths have not begun to follow suit, largely due to growing immunity in the population thanks to vaccination and previous infection.

“I’m less worried about what’s happening now,” Dr. Leana Wen, a CNN medical analyst and public health professor at the George Washington University, told CNN’s John King on Tuesday.

She said what’s concerning is if the CDC has now lost the power to require masks. It’s an open question, because Mizelle ruled that the CDC had overstepped its authority in the first place.

“I’m worried about what could happen in the future,” Wen said. “What if there’s a new variant that evades existing immunity? What if our hospitals get threatened at the point of being strained again? I want the CDC to have the authority at that point to say that masks have to come back.”

Wen said people worried about the disease or at risk of serious Covid-19 infection should still wear masks.

Letting it go. Neither Mizelle nor her past is the real government conundrum here. The White House could have immediately fought this in court, but as it weighed options Tuesday, masks were optional on many US planes. Congress could change the law, but not much can get through the US Senate.

There was not immediately any effort to lead in either of those directions.

In other words, the Democrats who are running the government are allowing this to happen, either because they think the science makes sense or because they lack the political will to change things.

Mask confusion. Masks have long been a flashpoint in public discussions over Covid-19 — when to wear them, when to take them off and what kind should be worn.

The public is split. CNN’s Ariel Edwards-Levy notes this:

March seems like a long time ago. I will add here that hospitalizations and deaths were on the downswing, but an average of more than 1,200 people were dying from Covid-19 each day when that poll was conducted. The average daily death rate as of Tuesday is 425 per day, according to data from Johns Hopkins University. It’s impossible to know if those answers would be different if the question were asked today, but it is certainly true the Covid-19 situation is different.

Majorities still see value in masks. Fifty-nine percent of Americans in the March Kaiser poll said people should wear masks in crowded public places, and 71% of Americans in the April Axios-Ipsos poll say they’d be at least somewhat likely to wear masks outside their homes if Covid-19 cases do rise in their areas.