Judge Kathryn Kimball Mizelle of the U.S. District Court for the Middle District of Florida issued a 59-page ruling on Monday voiding the Centers for Disease Control and Prevention (CDC) mask mandate, saying it exceeded the CDC’s authority and the agency had failed to justify the mask requirements.
White House Press Secretary Jen Psaki called the ruling “disappointing,” while others have strongly criticized the decision, including former Surgeon General Jerome Adams and former Harvard Law professor Laurence Tribe.
Political experts told Newsweek that the ruling will be seen as a political setback for the president, but suggested the ruling could have a limited impact on Biden’s political fortunes.
A Faltering Presidency
Robert Singh, a professor at the Department of Politics at Birkbeck, University of London, told Newsweek that the Biden administration seems likely to challenge the ruling in an appeal.
“It is a blow to Biden inasmuch as it was his administration that introduced the mandate after Trump’s had rejected this, and since the COVID rates are once again on the rise,” Singh said.
“In terms of the optics, it is yet another development that suggests a presidency that is faltering,” he said.
“It seems inevitable that the Justice Department will file suit to appeal the ruling, not least since the judge who issued it was a Trump appointee who had clerked for Clarence Thomas and the basis for the judgment is, at least in principle, open to challenge,” he said.
Judge Mizelle clerked for Supreme Court Associate Justice Clarence Thomas, graduating from the University of Florida Levin College of Law. She was nominated to the federal district court by then President Donald Trump in August 2020 and confirmed by the Republican-controlled Senate three months later.
Polarization
After Mizelle’s ruling, Singh told Newsweek that “it seems unclear how much political damage this will inflict.”
“The administration is cross-pressured on the subject since the airline industry has been lobbying to remove the mandate for some months now, but the ‘science’ - that is the CDC, TSA - augurs caution,” Singh said.
A number of major U.S. airlines have said they will drop mask requirements on their fights, along with similar announcements from Amtrak and Uber.
“More important, perhaps, the mask mandate is yet another issue that both reflects and reinforces hyper-partisanship and polarization - Democrats remain overwhelmingly in favor, Republicans overwhelmingly opposed,” he added.
“So, in that sense, it really won’t nudge the dial much either way,” Singh said. “I suspect that since the removal still allows individual Americans to choose whether or not to wear masks on airplanes, subways and buses, the furor will dissipate quite quickly and ‘freedom’ once more prevails.”
An Easy Excuse
Thomas Gift, founding director of University College London’s Centre on U.S. Politics, told Newsweek that the Biden administration might be able to turn Mizelle’s ruling to its advantage.
“The striking down of the mask mandate is, unsurprisingly, being framed as a political blow to the Biden administration,” Gift said.
“But if Democrats are shrewd, they could actually spin the outcome to their advantage - namely, by using it to deflect blame if COVID cases continue to rise,” he went on.
Gift said that Judge Mizelle’s decision “gives the White House an easy excuse to say, ‘It’s out out of our hands. We did what we could, and it’s not our fault if right-wing judges rule against measures that could’ve lessened another outbreak of the virus.’”
Moving On
Mark Shanahan, an associate professor at the Department of Politics and International Relations at Reading University in the U.K., and co-editor of The Trump Presidency: From Campaign Trail to World Stage, told Newsweek that Mizelle’s ruling spoke to a larger problem for Biden: politicized judges.
“In many ways this is proof of the power of the lobby and a triumph for the Federalist Society who advocated for Judge Mizelle’s appointment under former President Trump,” Shanahan said.
The Federalist Society is an organization of lawyers, legal scholars and others whose members believe in an “originalist” view of the U.S. Constitution. The society plays a major role in cultivating potential conservative nominees to the federal courts.
“Judging by the experience in other countries, the mask mandate was on its last legs anyway and would have disappeared in May,” Shanahan said, pointing to the fact that the mandate was due to expire on May 3.
That date was already an extension beyond the original expiration date of April 18.
Shanahan said that President Biden “may do well to accept the ruling and move on.”
A Politicized Judiciary
Shanahan argued that Mizelle’s ruling “highlights a drag” on Biden’s presidency “as more politicized members of the judiciary seek to make their mark - especially those like Mizelle who have limited experience in the law.”
Mizelle received a “not qualified” rating from the American Bar Association (ABA) at the time of her nomination in 2020. She had begun practicing law eight years earlier - less than the 12 years the ABA uses as a benchmark - and had never tried a case as lead or co-counsel.
“The U.S. Judiciary should not be the place where any president has to fight their political battles, yet increasingly judgements are being handed down with more of a nod to political leaning than to constitutionality of the matter at hand,” Shanahan said.
“The greater the frequency of such rulings, the more time the president, his agencies and the Justice Department will have to spend untangling the mess,” he added.
A Tricky Issue
John Owens, professor emeritus of United States government and politics at the Centre for the Study of Democracy at the University of Westminster, told Newsweek that the mask mandate could now be a “lost cause.”
“This is a tricky one for Biden since he originally introduced the mandate but many government and private entities in different areas of social life do not require mask-wearing now, at the same time that public perceptions of the severity of the virus have dissipated,” Owens said.
Owens noted that Florida “has regularly sued the federal government over numerous COVID-related restrictions and adherence to mask-wearing in that state is low.”
“For some time, conservative groups, including the Health Freedom Defense Fund, - which brought this suit - airlines, Republicans and some Democrats have been pressing to overturn the mandate and, at least in terms of domestic flights, have now got what they wanted,” he said.
A Lost Cause
Owens said that Judge Mizelle had been “a very conservative judge adopting a very narrow meaning of the 1944 CDC statute.”
He said that despite that narrow interpretation, the Biden administration had “accepted this decision, at least temporarily” and if the administration entered an appeal, the case would deal with “what most of the public would regard as arcane legal grounds.”
Owens said an appeal was “doubtful” when “the larger question for Biden - and Democrats facing election in November - is where does public opinion lie on this question.”
“Despite COVID rates rising again throughout the U.S. and polls showing only half Americans are comfortable with air travel, retaining the mask mandate, including in enclosed spaces, such as airliners and public transport, is probably a lost cause,” he said.
