Senate Votes to Lift Mask Mandate in Transportation, but House Unlikely to Act

Senate Votes to Lift Mask Mandate in Transportation, but House Unlikely to Act

March 18, 2022  | Jeff Davis

On March 15, the U.S. Senate, in a bipartisan 57-40 vote, approved legislation (S. J. Res. 37) that would force the Biden Administration to lift its mandate that users of transportation facilities in interstate commerce and local mass transit wear face masks.

The legislation is a resolution of disapproval under the Congressional Review Act, which is how it was able to go straight to the floor without committee approval and without the approval of the Majority Leader, who normally sets the schedule. But this “privileged status” for Senate floor consideration does not apply in the House, where Speaker Pelosi is expected to bury the resolution. (And even if the Speaker were to let it pass the House, President Biden has promised to veto it, and 57 Senate votes, while impressive, is not the 67 needed to override a veto.)

On the vote (Roll Call 81), eight Democrats joined 49 Republicans in favor, while one Democrat and 39 Republicans voted “no” and three Democrats missed the vote. The eight Democratic “yes” votes were Senators Bennet (CO), Cortez Masto (NV), Hassan (NH), Kelly (AZ), Manchin (WV), Rosen (NV), Sinema (AZ), and Tester (MT). Bennet, Cortez Masto, Hassan, Kelly, and Rosen are all up for re-election this year. The GOP “no” vote was Mitt Romney (UT), and the three Democratic absentees were Senators Duckworth (IL), Menendez (NJ), and Shaheen (NH).

The formal title of the rule that would be overturned by S. J. Res. 37 is “Requirement for Persons to Wear Masks While on Conveyances and at Transportation Hubs” and was originally issued by the CDC on February 3, 2021. It has been extended several times, most recently from March 18, 2022 through April 18, 2022. It took the Government Accountability Office until December 14, 2021 to issue a ruling that the mask mandate is, indeed, a rule under the terms of the Administrative Procedure Act, and thus under the Congressional Review Act, which is why it took so long for Senator Rand Paul (R-KY), the author of the resolution, to get a floor vote. (The Senate Parliamentarian defaults to GAO’s judgment on which agency actions should have been submitted to the Senate for CRA purposes if the Administration failed to do so, as in this instance.)

Speaking of GAO, they issued a report this week on how the TSA has enforced these mandates. Table 1 of the report shows the degree to which TSA investigated and enforced individuals who were accused of causing an incident when refusing to comply with face mask directives, showing that between February 2, 2021 and March 7, 2022, TSA had issued civil penalties against 922 persons, with an average penalty of $699.

Sadly, TSA lumped the passenger rail, intercity bus, and local mass transit incidents into one line on the table when sending the data to GAO, and TSA then told your intrepid correspondent that he would have to file a FOIA request in order to get that data broken down. Which is a pity, since the mask mandate as applied to local mass transit (intrastate commerce) was always of dubious constitutionality, compared to the other transportation modes (interstate commerce) where federal police power for safety regulation has been well established by the courts. (If anyone knows if any of those 44 people charged by TSA with a civil penalty on “surface transportation” were on a crosstown bus, they may have a good lawsuit if some libertarian foundation wanted to fund it.)

Meanwhile, yesterday 128 House Republicans signed a letter to President Biden asking him to stop extending the mask mandate:

All around the country masks are coming off. After realizing that Americans were fed up with conflicting, outdated, and nonsensical public health mandates, even state governments, controlled by both the Democratic and Republican parties, began announcing plans in early February 2022 to relax mask guidance, prompting the CDC to quickly shift its plans. Americans are dining at a restaurant, going to a concert, riding a school bus, attending the Super Bowl, or visiting Philadelphia for a political retreat, the CDC has finally recognized that masking is not required. Against that backdrop, it is unconscionable that your Administration believes that it is acceptable to continue to threaten airline passengers and public transportation users with fines and removal if they take off their mask for longer than it takes to sip a cup of coffee.

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