The DOJ Is Reluctant To Continue Defending the CDC's Mask Mandate Because It Worries It Will Lose Again

The Justice Department yesterday said it would appeal the decision vacating the federal mask mandate for travelers if the Centers for Disease Control and Prevention (CDC) decided that the rule "remains necessary for public health." Spokesman Anthony Coley added that the department "continues to believe that the order requiring masking in the transportation corridor is a valid exercise of the authority Congress has given CDC to protect the public health."

If Congress had indeed given the CDC a blanket power "to protect the public health," the mask mandate would clearly fall under it. But whether the Constitution allows the legislative branch to delegate such vast authority to an executive agency is another issue. So is the question of whether Congress itself has such broad authority, which would overlap with powers reserved to the states under the 10th Amendment.