Over a year after its implementation, Texas Attorney General Ken Paxton is suing the Centers for Disease Control and Prevention (CDC) and the United States Department of Health and Human Services (HHS) over the mask mandate law for public transportation. The mandate, ordered by the CDC, requires anyone 2 years of age or over to wear a mask on airplanes, in airports, or on transportation such as subways. Those with disabilities or other exemptions do not have to follow the guidelines, which the TSA states will expire on March 18.
Paxton, along with U.S. Representative Beth Van Duyne (R-Texas 24th District), filed the lawsuit against the CDC and HHS, as well as authorities in both agencies on Wednesday. Duyne has been in favor of lifting mask mandates in public spaces, and the Tribune reports that she had been fined previously for violating U.S. Capitol mask mandates.
The lawsuit claims that the CDC does not possess the authority to require such a mandate on the average citizen. Paxton and the AG’s office have filed multiple suits based on the same premise, such as when he sued the Biden Administration over COVID-19 vaccine mandates in November of 2021. Similarly, Paxton claimed that the Biden administration did not have the authority to enforce a “sweeping” vaccine mandate.
The mandate requires masks, not only to be worn in airports, but technically also on any U.S. conveyance and its hubs. This includes trains, buses, ships, terminals, seaports, or effectively anywhere people conduct travel.
Paxton says this violates the Administrative Procedure Act, which regulates whether or not agencies have the power to set rules and restrictions on citizens. In Section 264 of the U.S. Law Code, the power of the CDC is restricted to times it “determines that the measures taken by health authorities of any State . . . are insufficient to prevent the spread of any of the communicable diseases from such State . . . to any other State.”
The lawsuit declares the CDC has yet to provide any substantial evidence that Texas was not doing enough to lower the rate of infection during state-to-state travel.
In the CDC’s order, which went into effect beginning February 1, 2021, it specified: “Any state or territory without sufficient mask-wearing requirements for transportation systems within its jurisdiction has not taken adequate measures to prevent the spread of COVID-19 from such state or territory to any other state or territory.”
Paxton and prosecutors also argue the CDC cannot impose a rule that affects every single traveler, bringing into account the “liberty interests” of such travelers. It should be noted that Section 264 applies mainly to those “reasonably believed to be infected with a communicable disease.”
However, the prominence of asymptomatic and pre-symptomatic COVID cases may complicate the matter, as they make it difficult to determine who may be infected with the virus.
Per the CDC order, “Masks are primarily intended to reduce the emission of virus-laden droplets, i.e., they act as source control by blocking exhaled virus. This is especially relevant for asymptomatic or pre-symptomatic infected wearers who feel well and may be unaware of their infectiousness to others, and who are estimated to account for more than 50% of transmissions.”
The CDC has yet to respond publicly to the lawsuit. According to Dr. Fauci in December, it is in the best interest of public health for masks to still be worn on airplanes and other transportation.