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Psaki Says Quiet Part Out Loud: Appealing Mask Mandate About Government Power

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White House press secretary Jen Psaki confirmed that the Biden administration’s decision to appeal a court ruling ending the public transportation mask mandate is motivated not only by its health concerns, but also by preserving the federal government’s power to issue such rules going forward.

Psaki told reporters Wednesday the administration disagreed with the Monday decision and acted quickly to address the matter.

“So the immediate steps were to determine what power we had to respond to that,” the press secretary said.

“Obviously, that — that came in the form of the Department of Justice, came in the form of the [Centers for Disease Control and Prevention] acting and putting out the statements that they did,” Psaki continued.

She recounted that the videos of people celebrating the court ruling did not enter into their calculus to determine how to move forward.

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“Our focus here was seeing what power we had to preserve, what we felt was in the public health interests of the country,” Psaki said.

“[F]or current and future public health crises, we want to preserve that authority for the CDC to have in the future,” she further explained.

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Florida-based federal district court Judge Kathryn Kimball Mizelle cited the CDC’s misapplication of the 1944 Public Health Service Act and the improper invoking of the “good cause” exception to the Administrative Procedure Act as reasons for her decision.

The APA normally requires a “notice and comment” period before government agencies can enact new rules.

Because the CDC never took these steps, Mizelle determined the mask mandate was “arbitrary and capricious.”

“Because our system does not permit agencies to act unlawfully even in pursuit of desirable ends, the court declares unlawful and vacates the mask mandate,” Mizelle, who was appointed by former President Donald Trump, wrote in her order, The Associated Press reported.

In a Tuesday statement, DOJ spokesman Anthony Coley said, “The Department continues to believe that the order requiring masking in the transportation corridor is a valid exercise of the authority Congress has given CDC to protect the public health.”

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“That is an important authority the Department will continue to work to preserve,” he added.

Coley noted the CDC had issued an order last week extending the public transportation mask mandate until May 3 to allow the agency to assess the current conditions of COVID pandemic.

“If CDC concludes that a mandatory order remains necessary for the public’s health after that assessment, the Department of Justice will appeal the district court’s decision,” he said.

Cases have risen in recent weeks, though hospitalizations and deaths are down.

The daily average number of cases are approximately 42,000, down from over an 800,000 per day peak in January, according to The New York Times tracker.

On Wednesday, the CDC issued a statement requesting the DOJ to appeal the federal court mask mandate ruling saying, “masking in the indoor transportation corridor remains necessary for the public health.”

Based on Mizelle’s ruling, major U.S. airlines — such as Delta, United, American, and Southwest — as well as the Transportation Security Administration announced they are no longer requiring masks, though some localities are still mandating them.

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