Judge Kathryn Kimball Mizelle held that the CDC had exceeded its statutory authority, violated the notice-and-comment procedures required for rulemaking under the Administrative Procedures Act, and acted in an arbitrary and capricious manner in imposing the mask mandate…
That same day, the Justice Department said it would appeal, but only if the CDC concluded in the coming weeks that a mandate remains necessary to protect public health. After another day of White House deliberations about the political and policy implications of fighting the court’s decision, the CDC announced on Wednesday evening that its “continuing assessment” was that “at this time an order requiring masking in the indoor transportation corridor remains necessary for the public health.” Shortly afterwards, the Justice Department filed a notice of appeal.
A telling feature of the Justice Department’s appellate filing is that it reportedly did not include a request to stay the district court’s order and reinstate the mask mandate pending the outcome of the appeal… It strongly suggests the CDC is more concerned with preserving its prerogatives for the future than in protecting the public from a current health emergency…
