Why Biden dawdled as one judge derailed his transportation mask mandate

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My initial reaction was that this is just temporary.

When a federal judge in Florida ruled against the federal mask mandate for public transportation, I assumed the decision would be stayed and immediately appealed. The Biden administration, after all, still supported the mandate.

Immediately, some critics were asking how a 33-year-old judge in Central Florida, who clerked for Clarence Thomas and was appointed by Donald Trump, could single-handedly decide what’s best for the nationwide airline system.

But that’s exactly what happened with the ruling from Kathryn Kimball Mizelle. 

Biden speaks at the COP26 climate summit.  (Fox News)

Biden simply punted, and the airlines stopped enforcing the mandate so abruptly that on some planes it happened mid-flight. The TSA followed suit, and so did Amtrak.

My own view is that the time had come. Why is it that people could go maskless in sports stadiums, restaurants, offices and stores, but still had to don the face covering on flights, where the air filtration systems have been upgraded? The mandate, which was supposed to expire recently, kept being extended two weeks at a time in kick-the-can fashion.

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But the Biden administration’s muddled reaction was just mystifying, making the president seem like a bystander. 

If he had decided to appeal the ruling because he still thinks masks protect public health, fine. 

If he had decided that people had had enough, and it was time to drop the transportation rule, fine.

Travelers walk through Seattle-Tacoma International Airport on Friday, April 1, 2022, in Seattle. (AP Photo/Ted S. Warren, File)

But instead, he delivered the worst of all worlds: paralysis. First, no comment on appealing. Then, word that the Justice Department will appeal–if the CDC decides that the mandate is still needed. In other words, no decision, just dithering. 

How can this be? This isn’t a criminal probe; Biden can pick up the phone and tell his attorney general to appeal as a matter of policy. Waiting for the CDC, which is always way behind the pandemic curve and can’t communicate a clear message, is a fool’s errand.

Only after growing criticism did the administration finally move late yesterday. The DOJ filed an appeal, citing a green light from the CDC. It looked like what it was, a bow to liberal pressure, and I’d wager some high-level phone calls were made, but again, no announcement from the president. 

This didn’t come out of the blue. There was a pending lawsuit. How on earth could DOJ and CDC be caught so flat-footed?

MSNBC’s Chuck Todd sounded exasperated with the Biden team: "They don’t fight back. They don’t defend their rationale. They just give you the emoji shrug." The president and his aides have "repeatedly looked as if they’re easy to roll."

Jen Psaki called the ruling a "disappointing decision." So maybe your boss should do something about it?

Remember, the mask mandate for travelers is set to expire on May 3. Does the president really want to spend political capital on such a short-term fight? Maybe, given the public divisions, he just couldn’t figure out what to do.

Also keep in mind there’s nothing in the judge’s ruling that prevents people who feel at risk from wearing masks while flying or riding. It just doesn’t force everyone to do so.

White House press secretary Jen Psaki speaks during a press briefing at the White House, Friday, March 4, 2022. (AP Photo/Carolyn Kaster)

Biden, asked by reporters whether Americans should wear masks on planes, said simply, "That’s up to them."

Had Biden gotten out in front of this by dropping the mandate, he could have reaped the benefits. Instead, as the New Yorker once said of Barack Obama, he is again leading from behind.

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The media have assumed because most passengers broke into cheers when the ruling was announced mid-flight that voiding it has widespread appeal. But in a Politico/Morning Consult poll just before the ruling, 59 percent said they support extending the travel mask mandate and 32 percent were opposed.

Now I get why so many critics have focused on Judge Mizelle. She had no trial experience before her nomination and was rated unqualified by the American Bar Association. The mere fact that she was picked by Trump is enough for some on the Left to denounce her.

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She ruled that the CDC had exceeded its legal authority, which turns on the semantics of the law. Yet some of the criticism aimed at her has been absurdly personal, rather than dealing with her legal reasoning. Yes, a Trump judge is likely to rule differently than a Biden judge. That’s why we have elections.

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Even with an omicron sub-variant pushing up COVID-19 cases by an average of 47 percent in the last two weeks, I don’t think the mask mandate is coming back in this political environment. And it was a missed opportunity for a president whose approval numbers have been way underwater.