Who’s in Charge When it Comes to Making COVID 19 Regulations?

Health and Gender Policy Brief #151 | By: Alexandra Ellis | May 19, 2022

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Justice Department appeals order voiding travel mask mandate.

Photo taken from: Evan Vucci / Associated Press

Policy Summary

On April 19, 2022, U.S. District Judge Kathryn Kimball Mizelle in Tampa, overturned the mask mandate for interstate travel. The CDC’s interstate mask mandate for plane, trains, and buses, was first issued in May 2021, and was extended to May 2022. Before the mask mandate was set to expire this May, a U.S. District Court declared it unconstitutional. The Biden administration has been relatively quiet on COVID concerns since March of 2022, when the Center for Disease and Control and Prevention (CDC) released the community guidance standards. 

The question becomes, why then is the Justice Department appealing. In other words, why is the Justice Department trying to defend the interstate travel mask mandate when the rest of the Executive branch seems currently indifferent to COVID and recent surge in cases across the country. The answer to this is rooted in preserving CDC’s rulemaking authority and therefore executive and congressional power.

Policy Analysis

By a U.S. District Court declaring that the CDC exceeded its authority in creating the federal mask-mandate for interstate travel, it challenges the CDC’s authority to promulgate rules for future surges and pandemics. While the rest of the executive branch seems to have moved on from COVID, asking communities and individuals to step up and protect themselves, the Justice Department is defending the CDC’s authority to create rules relating to the health and safety of the nation.

The CDC is a federal agency, granted power through Congress, to monitor and carry out the federal regulations relating to public health of the nation. See Title 42 of the CFR. 

Through Congress, the CDC has the power to make and promulgate rules. All federal agencies usually have this power; it is called judicatory rule-making authority. In this authority, the federal agency has delegated authority from Congress to make rules relating to their respective agencies. In turn this frees up time for Congress to work on legislating new laws and dealing with other important matters than day to day implantation of federal regulations

Federal agencies, like the CDC, have rule making authority granted to them through Congress to implement Congress’s original legislation. They can make law that must be followed. In this instance, the CDC promulgated a rule that masks have to be worn during interstate travel: where travel occurs across state boundaries. 

It is without a doubt that Congress has the ability to enact laws that relate to regulation of interstate travel, because it affects the whole of the nation. The idea is rooted in federalism, that even though the United States is fifty separate states, with its own unique sets of laws and culture, as a nation we are united, and free movement between states should be protected at all costs.

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CDC and Prevention Director Rochelle Walensky made the decision in April to rescind immigration restrictions related to COVID-19 that were first implemented during the Trump administration.

Photo taken from: Greg Nash / Getty Images

The mask mandate on planes, buses, and trains helped stop the spread of COVID-19 and related directly to the authority of the CDC. The CDC with the interstate mask mandate hoped to protect public health. With a District Court in Florida striking this down, people have started to unmask during interstate travel. As soon it occurred, a popular video showed an airlines stewardess directing individuals on a flight that they no longer had to wear the masks. You can hear on the video people cheering and clapping.

See video, https://youtu.be/dbd0PQyfTMc.

So, if the idea of unmasking for interstate travel is so popular what is the problem with the District Court’s ruling? The issue becomes CDC’s authority to protect and promulgate rules for future COVID surges and other potential pandemics in the future. Under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 468 U.S. 837 (1984), judicial deference should be given to administrative actions that are reasonably related to their purpose.



A mask mandate to promote the health and safety of the country from a repository illness is reasonably related to the purpose of the CDC. The District Court’s decision ignores judicial deference and states that the CDC’s mandate is over- reaching. Effectively the court found that the mask mandate was unconstitutional because the CDC did not have the power to promulgate such a rule.

However, without a doubt Congress can make legislation relating to interstate travel. Because Congress delegates it powers to agencies, like CDC, to promulgate and carry out legislative goals, the CDC should be able to make rules relating to interstate travel such as a mask mandate on planes, trains, and buses. So, even though the Biden administrative says now that COVID should be a community and individual approach instead of a federal, it is in their interest to protect the travel ban in court. This is because the ruling challenges agency power. The Justice Department will challenge the ban to protect the CDC’s power from future assaults.

Engagement Resources​

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Listen to NPR’s take on why the Justice Department is appealing the Tampa District Court ruling: https://www.npr.org/sections/health-shots/2022/04/22/1094170593/why-the-governments-slow-move-to-appeal-the-mask-decision-may-be-a-legal-strategty.

To read more about why you should still wear a mask during interstate travel: https://www.npr.org/sections/health-shots/2022/04/22/1094183597/travel-mask-mandate-risk#:~:text=The%20Biden%20administration%20is%20appealing,risky%20travel%20is%20for%20themselves.

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To keep informed about COVID – 19 guidance check CDC guidelines regularly. COVID- 19 Community guidance and tool can be found at: https://www.cdc.gov/coronavirus/2019-ncov/communication/guidance.html. The map tool on this website will lead you to your local government page to check emergency COVID mandates, and other suggestions from local governments.

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