Biden Could Face Trump-Appointed Judges in Mask Appeal Case

After the Biden administration's federal mask mandate for planes, trains and transit systems was struck down by a Donald Trump-appointed judge earlier this week, the Justice Department (DOJ) said it will appeal the ruling. But the administration is likely to come up against other Trump appointees on the appeals court.

On Monday, U.S. District Judge Kathryn Kimball Mizelle for the Middle District of Florida overturned the U.S. Centers for Disease Control and Prevention's (CDC) mask mandate for public transportation, ruling that the federal agency exceeded its authority by imposing the mandate in February 2021.

As the DOJ moves ahead on its appeal, the case will move to the U.S. Court of Appeals for the 11th Circuit in Atlanta, which has jurisdiction over federal courts in Florida, Georgia and Alabama.

"The 11th Circuit is the second-most ideologically conservative appeals court," Carl Tobias, a law professor from the University of Richmond, told Newsweek. Trump's "numerous appointees to the court and Chief Judge [William] Pryor comprise a majority, who may find plaintiffs' arguments persuasive."

Of the 11 active judges on the circuit court's bench, more than half were appointed by Trump. While there are three Barack Obama-appointed judges and one Bill Clinton-appointed judge, the court is overseen by Pryor, who was nominated by George W. Bush and is part of the 7-4 conservative majority.

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The Biden administration's appeal of Monday's court ruling on the transportation mask mandate will be heard by a court with a majority of Donald Trump appointees on its bench. Above, President Joe Biden delivers remarks from the White House on April 21. Getty Images/Win McNamee

On Wednesday, the CDC continued to advise Americans to wear masks while traveling by planes, trains and buses. "At this time an order requiring masking in the indoor transportation corridor remains necessary for the public health," it said.

On behalf of the agency, the Justice Department said it had filed a notice of appeal "in light of today's assessment by the CDC."

If the DOJ loses its appeal in the 11th Circuit, Tobias said, it could go to the Supreme Court. But he warned that the Biden administration may not fare any better there in light of the justices' recent COVID-related decisions.

He also cautioned that a legal defeat at either level could have a tremendous impact on how the CDC handles future pandemics and other public health emergencies.

"Losing in the 11th Circuit, and especially in the Supreme Court, could bake in the ruling for decades and prevent CDC from invoking critical emergency powers that it needs to combat other serious health threats like the COVID pandemic," Tobias said.

Shortly after Mizelle's decision was announced, the nation's largest airlines, transit systems and ride-sharing apps lifted their individual mandates. Because the Biden administration did not ask the appeals court to block the judge's order, passengers will be allowed to continue traveling without masking. Meanwhile, the CDC's mask mandate was set to expire May 3.

If the CDC wasn't planning to extend it again in two weeks, Tobias said, the Justice Department may have picked the tougher move by choosing to appeal.

Rather than appealing, the Biden administration could have said it was prepared to see the mandate lifted anyway by the CDC. A federal mask mandate could then be reinstituted later should coronavirus cases, hospitalizations and deaths rise again.

Tobias noted that while the DOJ will be definitely facing a challenge in the 11th Circuit, the court hasn't seen enough of these appeals for experts to predict how the judges may rule.

"That court hasn't had a whole lot of challenges to various Biden administration policies, unlike the 5th Circuit, which has taken on more of them," he said. "The favorite venue for people challenging the Biden administration is Texas district courts, which go up to the 5th Circuit, but we'll see what happens."