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The Biden administration will appeal the transportation mask mandate

SCOTT SIMON, HOST:

Nearly all major airlines, transit systems and ridesharing services have made masks optional. That's after a ruling earlier this week from Judge Kathryn Kimball Mizelle that abruptly struck down the rule from the Centers for Disease Control and Prevention that required masks on public transit. The Biden administration waited a couple of days before announcing they'd appeal the ruling.

NPR's Selena Simmons-Duffin has been speaking with health law experts all week. Selena, thanks for being with us.

SELENA SIMMONS-DUFFIN, BYLINE: Hi. Morning, Scott.

SIMON: First, remind us, please, of what was in Judge Mizelle's opinion.

SIMMONS-DUFFIN: Yeah, so Judge Mizelle was nominated by former President Trump, and she was given a rating of unqualified by the American Bar Association because of her limited time practicing law and her lack of trial experience. In this ruling, she found that CDC didn't have the authority to issue this mask requirement and that it didn't follow the right procedures. Legal experts I talked with this week had very strong words about this opinion. One called it a legal abomination. Another said it read like a first-year law student's exam. And they said the reasoning was a stretch and that she ignored legal norms, and that this ruling has huge implications. Not only did it lead to people pulling off their masks mid-flight all over the country, but it could have the effect of limiting the power of CDC to issue public health rules down the line.

SIMON: Then why did it take a few days for the Department of Justice under the Biden administration to file an appeal?

SIMMONS-DUFFIN: Yeah, it's kind of strange. If the government wanted this back into effect right away, you would have expected lightning speed - like they would have asked for an emergency pause on her decision right away, but they didn't. Stephen Vladeck teaches law at the University of Texas, and he has a theory about this, which relates to the fact that the mandate is set to end on May 3.

STEPHEN VLADECK: Because the mandate's about to expire anyway, it seems just as possible that the government's real goal is to wipe off of the books Judge Mizelle's ruling, striking it down.

SIMON: How does that work? I mean, I took civics in high school, but I still don't understand. How does that work?

SIMMONS-DUFFIN: It's a little obscure. So this is the part of the story that has a surprising connection to underwear from the 1940s.

SIMON: You know, a hundred jokes are passing through my mind, and I think I'm going to avoid all of them. Why don't you just pick it up, Selena?

SIMMONS-DUFFIN: OK, stick with me. Back in 1944, the federal government sued Munsingwear, a Minnesota-based underwear company, because it said the company had overpriced its heavy knit underwear, and that violated wartime price controls. It took years for the case to wind its way through the appeals process, and by the time it got to the Supreme Court in 1950, there were no more price controls on the underwear. So in its decision, the Supreme Court established the Munsingwear doctrine. Basically, if the dispute has gone away during the appeals process, the higher court can wipe the lower court's ruling away. So in this case, after May 3, Vladeck says...

VLADECK: The government can say, look, we're not going to have a chance to argue why Judge Mizelle's ruling was incorrect. Therefore, the proper thing to do is to wipe that ruling off the books and just dismiss this entire lawsuit.

SIMMONS-DUFFIN: Of course, he says, only the government knows its legal strategy here. But every day that the government does not request a stay, he's more convinced that this is the real goal - to vacate the ruling so that, legally speaking, it never happened.

SIMON: Nobody talks about underwear and the Constitution as lucidly as Selena Simmons-Duffin. Thanks so much for being with us, Selena.

SIMMONS-DUFFIN: Thank you. Transcript provided by NPR, Copyright NPR.