Some airlines no longer require masks: see the reaction of passengers 0:50
(CNN) --
The Justice Department said Tuesday it will appeal a court ruling that struck down the federal government's mandate on the use of masks for travelers, but only if the US Centers for Disease Control and Prevention (CDC) determine that the mandate is still necessary to protect public health.
"The Department of Justice and the Centers for Disease Control and Prevention disagree with the district court's decision and will appeal, subject to the CDC's conclusion that the order remains necessary for public health," spokesman Anthony Coley said in a statement.
"The Department continues to believe that the order requiring the use of masks in the transportation corridor is a valid exercise of the authority that Congress has given to the CDC to protect public health. That is an important authority that the Department will follow." working to preserve," Coley said.
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Before the mandate was rescinded, the Biden administration had extended the requirement through May 3, requiring the use of face masks on board public transportation, airplanes, trains, and inside airports.
The CDC was set to assess whether the mandate was still necessary until May 3, and Coley said any appeals would come after that date.
"If the CDC concludes that a mandatory public health order remains necessary after that evaluation, the Justice Department will appeal the district court's decision," Coley said.
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Who is Kathryn Kimball Mizelle, the Trump-appointed judge who blocked Biden's mask mandate?
The move comes after the Justice Department spent much of the last day considering whether to challenge a court decision that caught much of the administration, the airline industry, local public transportation departments and ordinary Americans by surprise. .
An appeal would mean the administration would turn to a higher court to extend the mandate, even though many airlines and mass transit systems have already decided to make masks optional following the court ruling.
If an appeal against the mask decision does occur, it would be a risky move that could limit the government's ability to make similar mandates in the future.
If the 11th Circuit, which oversees Florida's appeals, upholds the ruling that strikes down the mandate, it would be a precedent for all other federal courts in that circuit, which covers the southeast.
A Supreme Court ruling upholding the decision to overturn the mandate would make the judge's conclusions about the CDC's authority binding across the country.
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The use of masks on board Air Force One
On Tuesday, President Joe Biden said he was not sure if his administration would appeal the decision.
Asked in New Hampshire if he wanted the Justice Department to appeal the new mask ruling, Biden said, "I haven't talked to the CDC yet."
And when he was later asked if there would be an appeal, Biden repeated: "I haven't received any summary from the CDC. I don't know. We're following the science."
Health and Human Services (HHS) Secretary Xavier Becerra had earlier suggested on Tuesday that such a move was likely.
"Right now we are in the process of deciding, and we will probably appeal that ruling. Stay tuned," Becerra said at a news conference with Nevada Governor Steve Sisolak.
The evolution of the situation was shown Tuesday when passengers on Biden's trip aboard Air Force One to New Hampshire were required to wear masks while, at the same time, commercial airline passengers across the United States entered aircraft cabins. with the option to give up a mask.
The president boarded the plane Tuesday afternoon wearing a black face mask.
But despite the Air Force One rules, Biden told reporters upon his arrival in New Hampshire that Americans must make their own decisions about whether to wear masks on planes.
"That's up to them," he said.
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Biden and his team were surprised by the judge's ruling on the masks
Administration officials were caught off guard when a Florida judge struck down the requirement, which had been in place for 441 days.
Suddenly, a decision administration officials had been contemplating for weeks — whether American travelers must wear masks — became urgent and complicated by U.S. District Judge Kathryn Kimball Mizelle, who was selected by Biden's predecessor, Donald Trump.
Attorneys for the administration have been weighing their options for the past 24 hours on how to respond to the decision.
People familiar with the discussions said the attorneys were considering a number of factors, but were primarily concerned that the judge's ruling could undermine the CDC's authority to enforce public health rules in the future.
At the same time, some officials raised concerns that a higher court could also rule against the mandate, making the appeal risky and leading to more confusion about the rules.
A ruling from a higher court, potentially the Supreme Court, could set a precedent that undermines the CDC's authority, officials said.
The end result seemed to split the difference.
While the Justice Department said it can appeal the decision, it left the CDC in charge of determining whether the mandate was still necessary.
Only then would an appeal go forward.
Administration officials said late Tuesday that they expected the CDC to determine an appeal is necessary, but that the decision rests with the health agency.
Some of Biden's aides were frustrated by the Florida court's decision.
But privately, an administration official acknowledged that the mask mandate was already coming to an end.
The order was also scrutinized by lawyers from the White House, the Justice Department and the Department of Homeland Security, which oversees the agency responsible for enforcing the rules.
As they digested the 59-page ruling, it was unclear whether passengers sitting in airports or on planes at 30,000 feet could remove their masks without violating federal rules.
The airlines, which had been lobbying the administration for weeks to lift the mandates, sought guidance from the government on exactly what they should tell crews and passengers, whose phones lit up with news of the ruling.
And in the hours after the judge's decision Monday, White House Press Secretary Jen Psaki could not say whether the federal mask mandate for travelers was still in place.
"We continue to advise people to wear masks. I don't have any updates," Psaki said when asked if the mask mandate is still in place for travelers boarding their flights on Monday night.
But after a few hours of deliberation, attorneys for the administration determined that the judge's order meant the mask mandate was not in effect, meaning the government could not enforce it.
The CDC emphasized that they were not enforcing the ruling in a subsequent statement to CNN on Tuesday.
Since the ruling and subsequent guidance from the administration that the mandate was unenforceable, several US airlines, some public transportation authorities, Uber, Lyft and Amtrak have announced that masks are no longer required for passengers.
The White House on Tuesday also snubbed one of those carriers, Delta Air Lines, after the carrier referred to Covid-19 as a "common seasonal virus" in its post announcing that masks are optional on its flights.
Delta's original post read: "We are relieved to see the US mask mandate lifted to facilitate global travel and COVID-19 has become an ordinary seasonal virus."
A White House spokesman for Covid-related matters, Kevin Munoz, responded, "Covid is not an 'ordinary seasonal virus,'" and linked it to Biden's 100-page preparedness plan.
Delta later removed the reference to "ordinary seasonal virus" from its post.
Dr. Gupta reacts to the abrupt end of mask wearing on public transport 2:03
The political confrontation over the use of a mask
If the White House was disappointed by the turn of events, scenes of air passengers gleefully removing their masks mid-air illustrated the complex emotions surrounding the moment.
Mask mandates on planes have proven to be one of the most contentious rules of the pandemic era.
Airplanes have become a breeding ground for conflict, often over the need for face coverings.
Polling in March found that Americans are almost evenly split in their support for a continued mask mandate for travel.
In a March 15-22 poll from the Kaiser Family Foundation, American adults were divided on the federal mandate requiring people to wear masks on planes, trains and other public transportation.
Roughly half of those surveyed, 51%, said the government should let the mandate expire after April 18 (as originally planned), while another 48% wanted the travel mask mandate to be extended.
The same March poll found broader support for the voluntary use of masks in some situations.
A 59% majority of Americans said "people should continue to wear masks in some public places to minimize the spread of COVID-19 and prevent another surge in cases," while 40% said "people should stop to wear masks in most public places" so things can get back to normal.
About two-thirds of Americans are vaccinated with at least their initial series and less than a third have received their boosters.
But many indicated they are ready to move on and live with the virus: Just 1 in 10 call the pandemic a crisis in a recent Axios-Ipsos poll.
Meanwhile, reported coronavirus cases are rising in more than half of the 50 states, largely driven by the omicron BA.2 subvariant.
But hospitalizations for covid-19 are near their lowest level since the government began tracking that metric in July 2020. The omicron subvariant BA.2 and its derivatives are now causing virtually all covid-19 cases in USA
Asked if the White House is concerned that the administration is out of step with the American public's perception of Covid-19, Psaki told reporters Tuesday: "(We) don't make these decisions based on politics. or in political whims on a plane or even in a poll."
He argued that "there are still a lot of people in this country who still want to have wearing masks," pointing to immunocompromised people and parents with young children.
Biden administration seeks a return to normalcy, on his terms
In some ways, removing the mask requirement on planes, trains, and buses was a natural step for the White House's intent to return life to normal.
A few hours before Monday's ruling, Biden greeted 30,000 guests on the South Lawn for a revived Washington Easter egg race, the largest event he has hosted at the executive mansion since taking office.
Even amid a spike in cases within his inner circle and among high-profile officials in Washington over the past month, Biden had not altered his routines.
And even his top aides had begun to admit that in a different phase of the pandemic, it was quite possible that he himself might be infected.
Biden will headline two big-ticket fundraisers in the Pacific Northwest when he visits later this week, according to people familiar with the plans — it's the first time he's traveled to raise money since taking office.
He had avoided in-person fundraisers for much of his presidency and campaign amid the pandemic.
The fundraisers are the latest sign that the White House is moving toward a post-pandemic normalcy.
They will support the Democratic Grassroots Victory Fund, which is a joint account between the Democratic National Committee and state Democratic parties.
Biden is using his trip to promote his infrastructure bill.
It will be only his second time on the West Coast since he took office.
-- CNN's Ariel Edwards-Levy, Brenda Goodman, Maeve Reston, DJ Judd, Virginia Langmaid and Betsy Klein contributed to this report.
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