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Analysis: The U.S. Appealed to Reinstate Masks. But Is It Seeking to Win?

WASHINGTON — Does the Biden administration really want and intend to fight for a higher court reversal of the ruling this week striking down its mask mandate on airplanes, trains and other public transportation — as of the case seemed to suggest?

Legal specialists raised another possibility: The administration may instead be buying time and thinking about trying to erase the ruling — a move that would allow it to protect the powers of the Centers for Disease Control and Prevention to respond to a future crisis — but without reviving a mask mandate.

The tell, several outside specialists said, was that the Biden administration was letting days pass without seeking a stay of the ruling, the step that could most immediately resurrect the mask requirement.

“Basically, it is giving up on the mask mandate,” said Lawrence O. Gostin, a Georgetown University professor of global health law who advised the White House on the case. “The administration’s goal is a legal principle, which is to ensure that the C.D.C. has strong public health powers to fight Covid and to fight future pandemics. And it appears much less important to them to quickly reinstate the mask mandate.”

But Mr. Vladeck contended that the failure to seek a stay may make sense if the Biden legal team was instead trying to protect the C.D.C.’s power with no real intention of trying to get a higher court to reinstate the mask mandate.

He pointed to under which if a case is on appeal when the dispute becomes moot for reasons unrelated to the litigation, an appeals court can remand it to the district court with instructions not only to dismiss the case but to vacate the district court’s ruling — meaning wipe it from the books.

The government, he said, may be giving itself that option after the mandate’s planned expiration on May 3.

In her ruling, Judge Mizelle put forward a cramped interpretation of the agency’s regulatory powers to protect against the interstate spread of infectious diseases. Both she and a majority of the appeals court that oversees her court were appointed by President Donald J. Trump, whose legal advisers openly promoted their search for potential judges of regulatory agencies.

Asked by a reporter on Thursday why the Justice Department had not sought an immediate stay, Attorney General Merrick B. Garland called that “a tactical strategy question.” Giving no further explanation, he said the matter would be resolved by litigators in the Justice Department.

But, he added, “our reason for appealing is we believe that the C.D.C. has clear statutory authority for the mask mandate, and the C.D.C. has assessed that it is necessary for the health of the American people — particularly the traveling public.”

Michele Goodwin, a law professor who specializes in health policy at the University of California, Irvine, said the standards for winning a request to stay a judicial order can be even higher than for an appeal. Fighting for one and losing it, she said, would raise particular risks of an appeals court decision that could take a similarly narrow view of what the C.D.C. may do in a public health crisis — and that, unlike a district court ruling, would also be a binding precedent.

“Losing sends a very strong message, and not just for the matter that happens to be at hand, but for other cases related to public health and safety,” she said.

The C.D.C. said on Wednesday that masking remained necessary to protect the public health of passengers on planes, trains, buses and subways, and of Americans support the requirement. But airlines have called for an end to the requirement for months. And aside from public transportation, the administration has been deliberately moving away from masking as an essential pandemic tool for weeks.

Asked on April 11 why Mr. Biden wore a mask the previous weekend while Vice President Kamala Harris had stood over him maskless at an event, Jen Psaki, the White House press secretary, said it was up to each person to decide what to do.

“We all make decisions. Some people in here are wearing masks to make them more comfortable, or because they chose to that day,” she said, perhaps because they will be around family members or others who are particularly vulnerable. “And the president makes that decision, as we all do as well.”

In late February, the in a way that made it far less likely that a county would be considered high risk, and specified that it recommended indoor mask-wearing in high-risk areas. In areas of moderate risk — like Manhattan and Washington, D.C. — those from the virus should talk to their health care providers about whether to wear a mask, the revised rules say.

“Our emphasis right now is on getting people information and tools they need to make decisions for themselves,” Dr. Greta Massetti, a senior epidemiologist who is helping lead the agency’s pandemic response, said in an interview last week. Those choices should be “based on their own personal level of risk and their risk tolerance,” she said.

Sheryl Gay Stolberg and Katie Benner contributed reporting.

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