To Appeal, Or Not To Appeal

The Biden Administration is weighing a tough decision: whether to appeal the federal court decision striking down the mask mandate the federal government imposed on air and train travelers during the COVID pandemic. It’s a very tough decision on both legal and political grounds.

According to news reports, the Justice Department will appeal the court ruling if the CDC decides that the mask mandate is still necessary to protect public health. That’s a bit strange, in a way, because the CDC decided only last week, just before the court ruling, that the mask mandate should be extended for an additional 15 days, until May 3, to allow the CDC to assess the impact of yet another COVID subvariant. It seems as though the DOJ is punting the decision to the CDC and, perhaps, hoping that the CDC will change course, decide that public health now doesn’t require an extension, and allow the DOJ to cite that determination in electing not to appeal. In the meantime, the DOJ won’t pursue an immediate stay of the federal court’s decision, which means that the mask mandate won’t be enforced unless and until an appeal occurs and the appellate court rules to the contrary.

The legal and political stakes in the decision on a potential appeal are high. Legally, the issue is whether the federal government wants to take the risk that a higher court will agree with the district court judge and establish a firmer precedent that the CDC doesn’t have the kind of sweeping power it has exercised over the past two years. Some people describe the district court decision as a poorly reasoned “legal disaster,” while others contend it is a reasonable interpretation of statutory text that simply was not intended to authorize an administrative agency to unilaterally impose nationwide mask mandates. Regardless of how you come out on that issue, for now the decision is simply the opinion of a single district court judge. If an appeal occurs, the federal government runs the risk of an adverse decision by a federal court of appeals and, potentially, the Supreme Court–raising the possibility that, if the nation’s highest court agrees with the federal district court judge in this case, the CDC’s ability to issue future public health mandates could be eliminated, unless and until Congress decides to amend the statute to clarify what is permitted.

Politically, the stakes are equally high because there are strong feelings on both sides of the masking issue. News reports in the wake of the federal court decision reported pro and con comments from travelers about the decision, while videos of cheering passengers removing their masks mid-flight appeared on social media. Whatever decision the federal government makes is likely to upset one faction or the other, leaving the Biden Administration at risk of being labeled irresponsible in its stewardship of public health, or a lily-livered adherent to pointless governmental paternalism. No politician would be happy about either of those outcomes. On the other hand, if the CDC suddenly decides that, under the current circumstances, the mask mandate is no longer needed to protect public health, it has provided the Biden Administration with some political cover–and those who want to wear masks will of course be permitted to do so.

It would be interesting to know whether, behind the scenes, the Biden Administration is encouraging the CDC to move in one direction or another. It’s hard for politicians to restrain themselves from politicking. We’ll never know for sure, because if that information came out it would undercut the depiction of the CDC as the neutral, objective, apolitical entity that is focused solely on scientific and medical evidence and the public health.

A Return To Masking Up In Philadelphia

I’ve very enjoyed the month or so of relatively mask-free life since Columbus lifted its mask mandate in early March. Other than masking up for air travel, things were starting to feel like they were returning to the pre-pandemic “normal”–or at least, a reasonable resemblance of it. That’s why I experienced a chill when I read last night that Philadelphia has decided to return to a mask mandate and become the first major U.S. city to do so.

Philadelphia is going back to masks because a rise in COVID-19 cases in the City of Brotherly Love has hit the metric that triggers masking requirements. Starting April 18–a week-long delay was established to allow businesses to adjust–Philadelphia will again require masks in indoor public spaces, like restaurants, offices, and shops. Businesses have the option of requiring proof of vaccination in lieu of masks. In explaining the cause for the new mask regime, the Philadelphia Inquirer reports:

“Philadelphia established a benchmark system in March that uses case counts, hospitalizations, and the rate of case increase to determine which safety strategies are needed. The seven-day daily average of cases, 142 as of April 8, and a 60% increase in case counts over the past 10 days met the standards to reintroduce the indoor mask mandate. There were 44 people hospitalized in the city Monday, a slight decrease from last week.”

The Philadelphia system of establishing triggers raises an interesting question: should raw numbers control policy, or should public officials exercise their judgment and weigh other issues? Are 142 cases a day and 44 hospitalizations in a city of about 1.5 million sufficient to cause reimposition of a mask mandate, and should other considerations–like obvious mask fatigue on the part of the population, and questions about how a general public that keenly wants to be done with COVID will react to a return to masking–come into play? Will reimposition of mask mandates result in protests and general civil disobedience and noncompliance with the order?

I hope public officials in Columbus and elsewhere are seriously thinking about the possible consequences of a return to masking, because there will be pressure from some quarters to follow Philadelphia’s lead. CNN reports that COVID cases are rising in the U.S., although the numbers are low compared to what we experienced in 2020 and 2021. And, curiously, Philadelphia’s reimposition of its mandate is coming on the same day that the current federal mask mandate for the transportation sector is set to expire. It will be an odd juxtaposition indeed if cities are reinstituting mask requirements at the same time the federal government is lifting them.

Casual Disobedience

I spent a lot of time in downtown Columbus today. Columbus is one of those cities where a mask mandate imposed by the Mayor has been in effect for months–since September 2021 and the early days of the Delta variant, in fact. (Who out there even remembers the dreaded days of the Delta variant? It seems like ancient history, doesn’t it?)

But today, the mask mandate was largely ignored. Many of the people I saw in downtown buildings weren’t masked up. And what was striking was the casualness of it all. People weren’t loud and proud about their de-masking or, so far as I could tell, consciously trying to make a political statement by walking inside buildings with a mask-free face. Instead, it was an utterly unceremonious thing–as if the maskless just decided that they had had enough, and weren’t going to go along with the mask requirements any more.

People in Columbus have been talking about when the Mayor is going to lift the mandate and allow residents to enter buildings without masks–which has been the rule in most of the surrounding suburbs and in many other Ohio cities. If I were the Mayor, and had been in downtown Columbus today, I would be thinking about lifting the edict sooner rather than later. It doesn’t do any good to issue directives if they are going to be casually ignored, and it seems pretty clear that that is what is happening here. Trying to keep the mask mandate in place when people are routinely ignoring it is fighting a losing battle–and what politician wants to do that?

Pants And Masks

As I’ve mentioned, in Columbus we are still dealing with a mask mandate imposed by our city government. Some places are dealing with the mandate with a welcome dollop of humor. I got a laugh out of this sign on the entrance to Dempsey’s restaurant, across from the Franklin County Courthouse, that equates the discomfort of masks and pants.

It’s true–pants are pretty uncomfortable, especially for those guys hanging around the bar drinking beer.

The Upside Of Masks

The latest City of Columbus mask mandate lingers on as we approach the two-month mark–so much so that people are wondering when the heck it’s finally going to be lifted. As the article linked above reports, even though the rate of cases in Columbus is dropping steadily, and has decreased by more than half since it hit its high point on September 21, we’re not even close to the likely termination date. The Columbus city administration has indicated that Columbus remains a “red”-designated area by the CDC, and the mask order won’t be lifted until the city’s rate falls enough for the CDC to put the area into the “yellow,” or moderate, transmission category for four consecutive weeks.

So, those of us in Columbus will have to deal with the mask mandate for a while longer–even though many other parts of Ohio, which also fall into the “red” category, are ignoring the CDC’s guidance and cavorting in buildings and bars without a mask to be seen.

But enough with the complaining! It’s time to see the benefits of masks, besides whatever effect they may have on transmission of COVID-19. I thought about this recently when I was in a masked meeting and couldn’t fully stifle a yawn–and then realized that, thanks to the mask, no one could see it and conclude that I was rude or bored, or both. For that one moment, at least, I was grateful for the mask.

I’m sure there are other positive aspects of mask-wearing, besides disguising cavernous yawns. During my pimply-faced, metalmouth adolescent years, I probably would have been relieved to wear a mask that would cover the latest skin eruptions and unsightly braces or the pathetic, wispy moustache I was trying to grow. And, if you think about it, masks also allow you to cover up reactions other than yawns. How may mask-wearers have responded to a colleague by sticking out their tongues, blowing a raspberry, or engaging in some other satisfying mouth-oriented expression behind the safe covering of a mask? And masks also can serve as facial banners that allow you to advertise your allegiance to a sports team, or offer your colleagues an inspiring “we can get through this together!” message. The sale of masks–as a new product that no one bought before–probably have had a positive impact on the economy, too.

Still, I’ll be quite happy when the mask mandate finally ends, and I can walk to the coffee station to get a cup without masking up.