Texas Attorney General Ken Paxton, U.S. Rep. Beth Van Duyne, R-Texas, and the Texas Public Policy Foundation Wednesday announced a lawsuit against the U.S. Centers for Disease Control and Prevention attempting to end the mask mandate at U.S. airports and on airplanes.

What You Need To Know

  • Texas Attorney General Ken Paxton, Republican U.S. Rep. Beth Van Duyne and the Texas Public Policy Foundation on Wednesday announced a lawsuit against the U.S. Centers for Disease Control and Prevention

  • The lawsuit seeks an injunction that would end the requirement that masks be worn in U.S. airports and on airplanes.

  • In announcing the lawsuit, Paxton described the mask mandate as “silly” and “illegal”

  • The CDC says masks “are primarily intended to reduce the emission of virus-laden droplets by the wearer, which is especially relevant for asymptomatic or presymptomatic infected wearers who feel well and may be unaware of their infectiousness to others”

The complaint, which is seen as a long shot, states that Congress never granted the CDC the authority to “make or enforce regulations that amount to a blanket preventative measure against people that may or may not carry infectious disease.” It argues that the CDC exercising such authority violates separation of powers and constitutes an abuse of power.

“With their constantly changing science, fluctuating recommendations and oppressive need to control all aspects of society, the CDC has caused our country untold damage,” Van Duyne, whose district includes Dallas/Fort Worth International Airport, wrote in a news release announcing the lawsuit. “It is time for all mandates to be lifted, including those affecting airline passengers.”

Paxton, in a tweet announcing the lawsuit, called the air travel mask mandate “silly” and “illegal.”

“Just filed my 22nd suit against Biden, this time regarding anti-science, virtue-signaling masks on airlines & airports. Masks on planes are not only silly, but illegal too,” Paxton wrote.

The lawsuit, filed in U.S. District Court of the Texas Northern District, seeks an injunction against mask mandates on commercial airlines, conveyances and transportation hubs.

The Texas Public Policy Foundation, counsel for Van Duyne, argues the CDC overstepped its authority.

“They really don't have the power to do it. So it's an important check on their statutory authority to really control people's lives and whether people will have the choice to do what they want,” Nathan Curtisi, an attorney with TPPF, told Capital Tonight

According to the CDC’s website, it issued an order on Jan. 29, 2021 “requiring the wearing of masks by people on public transportation conveyances or on the premises of transportation hubs to prevent spread of the virus that causes COVID-19.”

The CDC says masks “are primarily intended to reduce the emission of virus-laden droplets by the wearer (‘source control’), which is especially relevant for asymptomatic or presymptomatic infected wearers who feel well and may be unaware of their infectiousness to others.”

“Masks also help reduce inhalation of these droplets by the wearer (“filtration for wearer protection”),” the CDC mask guidance continues. “The community benefit of masking for SARS-CoV-2 control is due to the combination of these two effects (source control and filtration for wearer protection); individual prevention benefit increases with increasing numbers of people using masks consistently and correctly.”

According to multiple reports, including one from ABC News, the CDC is reviewing new metrics and could issue a relaxed COVID-19 guidance to include mask usage as soon as next week.

The White House has said repeatedly the president is following the advice of the CDC. CDC officials said they don’t comment on pending litigation, but earlier this week at a briefing Director Rochelle Walensky confirmed the agency may relax its guidance. 

“We all share the same goal: to get to a point where COVID-19 is no longer disrupting our daily lives; a time when it won’t be a constant crisis, rather something we can prevent, protect against, and treat. Moving from this pandemic will be a process led by the science and epidemiologic trends,” Walensky said.

Republican officials in Texas said they are hopeful the suit will succeed because courts threw out the CDC’s pandemic moratorium on residential evictions. But Lawrence Gostin, founding Linda D. & Timothy J. O’Neill professor of Global Health Law at Georgetown University, called the lawsuit a non-starter, saying issues involving interstate and international travel are within the agency’s purview.

“It really should be thrown out. There should be no doubt that the CDC can protect the traveling public from an infectious disease. In fact, the omicron variant is probably the most infectious pathogen that we have on this Earth,” Gostin told Capital Tonight.