On Halloween Day, the US Supreme Court decided not to hear an appeal of a December, 2021 ruling about airline masking from the US Court of Appeals in the District of Columbia, leaving the lower opinion in place.  The lower Appeals court  had found that the Transportation Security Administration (TSA) did have legal authority to impose a travelers’ masking rule on airlines and other types of transit.

However, to complicate matters, on April 18, 2022 a federal trial court in Florida looked at the travel  masking issue from another agency’s perspective, and found that the Center for Disease Control (CDC) did not have the authority to issue its own travelers’ mask mandate. The CDC April decision was appealed by the government and the case is still ongoing.

TSA and CDC Mandates Not Identical

While the two mandates are nearly identical, they originated out of different agencies, (the TSA and the CDC), agencies that have different delegations of authority from Congress.  Thus, their mandates have some differences. For example, the TSA mandate calls for replacing face masks in between “bites and sips” and the CDC does not include that language.

TSA Dropped Mandate in April

As these dueling legal opinions show, each mandate relied on different statutory authorities. But we see that the TSA responded quickly to the court opinion on the CDC case.  For example, after the April 22 decision that said CDC did not have authority, the TSA announced that, “Due to today’s court ruling, effective immediately, TSA will no longer enforce its Security Directives and Emergency Amendment requiring mask use on public transportation and transportation hubs. TSA will also rescind the new Security Directives that were scheduled to take effect tomorrow. CDC continues to recommend that people wear masks in indoor public transportation settings at this time.”

No Masks Required, For Now

The bottom line is that there is no airline mask mandate effectively in place right now.  And we don’t know why the US Supreme Court did not hear the Appeal thus leaving the TSA opinion in place that affirmed the TSA authority to mandate travel masking; it may be that they agreed with the Court of Appeals, or it could be that they thought the case was “moot,” or lacking practical significance, since the mandate was no longer in effect. While it appears that given these court opinions TSA may be able to reinstate a mask mandate, the CDC’s ruling and the political unpopularity of airline masking may keep us free from airline mask mandates for the time being.