President Joe Biden’s administration is leaning toward appealing the April 18 ruling that struck down the federal mask mandate, an official said on Tuesday.

“We are right now in the process of deciding, and we likely will appeal that ruling, but stay tuned,” Xaiver Becerra, Biden’s health secretary, told reporters in Nevada.

U.S. District Judge Kathryn Kimball Mizelle, a Trump appointee, concluded that the mandate violated federal law because there wasn’t a public comment period before it was implemented.

She also ruled that the Centers for Disease Control and Prevention (CDC), which promulgated the order, lacks the statutory authority to compel people to wear masks on federal transportation such as airplanes.

Because of the ruling, the CDC said that the order was no longer in effect, though it continues to recommend people wear masks on indoor transportation.

White House press secretary Jen Psaki told reporters on board Air Force One shortly before Becerra spoke that agencies are reviewing the decision, including the Department of Justice, which has not returned requests for comment.

“It typically takes a couple of days to review and make an assessment,” she said.

The Biden administration has given mixed signals in the wake of the decision.

Psaki, noting the CDC’s recommendations, said that “we would advise all Americans” to follow them.

But Biden, asked in New Hampshire whether individuals should continue wearing masks, said that it was “up to them.”

“I haven’t spoken to the CDC yet,” he added when asked about a possible appeal.

The White House was requiring all passengers on Air Force One to wear masks despite the ruling. Biden boarded wearing a black mask.

Biden did not wear a mask while talking to reporters. He was outdoors with officials from the New Hampshire Port Authority.

The president also forwent a mask while speaking indoors in Portsmouth or while shaking hands and talking with people after delivering a speech.

Becerra said the administration is respecting the ruling but that he will “follow the science” and encouraged people to wear masks.

The official appeared at an event at the Las Vegas Convention Center with Nevada Gov. Steve Sisolak, a Democrat. Neither Becerra nor Sisolak were wearing face coverings.

Becerra mused that “it was a different time” when he traveled to Nevada in 2021, telling the audience that “I probably wouldn’t have been able to identify you very well because you would have been wearing masks.”

“I thank Joe Biden, our president, because I know what he did to make it possible for us to be here without masks,” Becerra also said.


Zachary Stieber covers U.S. and world news. He is based in Maryland.

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