Another day, another example of the Biden administration groping aimlessly in the dark.
On Monday, a federal judge shot down the travel mask mandate. The White House response has been muddled confusion. In response to a question about whether airline passengers should continue to wear masks, President Joe Biden said, “That’s up to them.” A few hours earlier, press secretary Jen Psaki had said — incredibly — that the courts shouldn’t police public health experts on mask edicts and that passengers should continue to don face coverings.
Meanwhile, the administration sent mixed messages on a judicial appeal. Mr. Biden’s secretary of Health and Human Services originally said a challenge to the decision was forthcoming. Later, Justice Department officials said they would file the appeal only if the Centers for Disease Control and Prevention thought that was a good idea. CDC officials dilly-dallied but finally gave the go-ahead on Wednesday afternoon.
In the real world, many airlines and airports have allowed passengers, if they so choose, to go free in the wake of the judge’s decision.
Instead of being caught flat-footed — as it has on so many issues, including Afghanistan, inflation and the border — the White House should have been prepared for the inevitable end of arbitrary public health orders, given the trajectory of the virus. It wasn’t.
“There is an opportunity now,” Dr. Amesh Adalja of the Johns Hopkins Center for Health Security, told The Associated Press. “Instead of saying this is a disappointing ruling, they could say this is a good time to have a conversation about how we move forward in this pandemic about risk calculation.”
Instead, many progressives personally attacked the judge, a 35-year-old Trump appointee, for her decision. In fact, the ruling — like the Supreme Court holding last year that invalidated the CDC’s eviction moratorium — was constitutionally sound. The agency, Judge Kathryn Kimball Mizelle found, had stretched statutory language to claim vast powers beyond its authority. “Our system,” she wrote, “does not permit agencies to act unlawfully even in pursuit of desirable ends.”
Amen. The idea — implicit in Ms. Psaki’s comments and among many on the left — that federal public health officials should enjoy virtually unlimited power during a crisis and also be immune from judicial oversight is dangerous and disturbing. So is the belief that Congress can simply delegate such immense power to a single federal agency.
Last year, Ms. Psaki said the administration was “disappointed” when the Supreme Court struck down the CDC’s eviction moratorium. Don’t say the White House hasn’t been warned about the likely outcome of a similar case involving the high court, agency powers and masks on trains and airplanes.