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.