I spent my weekend writing an appellate petition regarding TSA’s mask mandate, and of course as soon as I finished proofreading and sending it to the printer on Monday, I see the alert that a judge for the U.S. District Court for the Middle District of Florida vacated the CDC’s rule — which supposedly TSA was just “supporting” — as beyond its authority and improper under the Administrative Procedures Act. A few hours later, TSA announced it would rescind its mask mandate.
My personal frustration about the wasted weekend notwithstanding, I naturally welcome the news. CDC — an actual public health agency — was stretching its mandate, but TSA was absolutely sprinting past its mandate by cramming a public health order under the umbrella of “transportation security.” I don’t have an opinion to share on whether yesterday’s order would survive appellate review, as the 59 page document certainly requires more than a moment to parse, but it appears the government will not be appealing and is ready to let the mask mandate go. So, although the D.C. Circuit certainly did not agree in my case, it appears to me (at least if nothing changes) that the issue may now be moot before my deadline to ask the Supreme Court to review that decision next week, which means I am left with nothing to ask the Supreme Court to review.
I’ll be representing individuals who have been fined (or worse) under the mask mandate and look forward to pressing the important issue of agency boundaries in those cases — and will update you all as much as I can. And, I’ll be enjoying a mask-free flight tomorrow!