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A look at how much authority the CDC actually has

ARI SHAPIRO, HOST:

The federal government is now appealing a court decision that struck down the federal mask mandate on public transportation. The Justice Department filed the appeal at the request of the Centers for Disease Control and Prevention. Face coverings became optional this week on many planes, trains and buses after a federal judge declared that the CDC had exceeded its authority in requiring masks for travelers. The CDC has faced many such challenges to its authority during the pandemic - to what it can and can't do in the name of public health. Now, it's fighting back.

NPR health reporter Pien Huang is here. Hi, Pien.

PIEN HUANG, BYLINE: Hey, Ari.

SHAPIRO: So this mask ruling that is now being challenged by the Justice Department, will it stand?

HUANG: Well, that's still up in the air. As you mentioned, the Justice Department and CDC are now appealing to get a travel mask mandate reinstated. And the CDC says the order for wearing masks on planes, trains and buses is still needed for public health and also that appealing the decision protects their public health authority. The nationwide mask mandate on trains, buses and planes was struck down Monday by a Trump-appointed judge who thought that the CDC did not have the authority to make people wear masks, even if it might be good for public health. The Justice Department and CDC disagree, so this evening, the DOJ filed a notice of appeal in federal court in Tampa to get the ball rolling.

SHAPIRO: So if it was a question of authority whether the CDC is allowed to do this, is it clear what kinds of powers the CDC has?

HUANG: Well, traditionally, the CDC makes the most use of its soft powers; you know, using science and reason to persuade states and individuals to do things for the sake of public health. But it also has hard powers which go back to the 1944 Public Health Service Act. In the past, the agency has used these to quarantine individuals. And in this pandemic, CDC has been using them to issue broad orders on a range of things, like making travelers test and mask to banning evictions and turning migrants away at the borders. Dr. Marty Cetron, the CDC's head of global migration and quarantine, told me last year that this is new territory for the CDC.

MARTY CETRON: This has been the largest and most expansive or inclusive use of regulatory authority, given the unprecedented nature of this pandemic threat.

HUANG: No one from CDC would talk on the record now as these orders get challenged in court, and the mask ruling was just the latest defeat.

SHAPIRO: Like, what were some of the others?

HUANG: Well, the biggest blow came last August, when the Supreme Court ruled that the CDC exceeded its authority with its ban on evictions. Lindsay Wiley, a health law professor at UCLA, said that the move was a bit of a stretch for CDC.

LINDSAY WILEY: A lot of the general public and a lot of federal judges feel like, you know, this isn't exactly what CDC's role should be; this is something state and local governments are doing, and it should really be left to them.

HUANG: Ultimately, the Supreme Court said CDC didn't have the authority to do it, and they struck it down. Now, that was one ruling on evictions, but law experts say it had a ripple effect. Lower courts could use it to limit the CDC's powers too, and the judge in Florida did cite it this week as she canceled the travel mask mandate.

SHAPIRO: What would that ripple effect do? If the CDC's powers get restricted more broadly, what kind of impacts could that have on public health?

HUANG: Well, health experts told me that they worry that limiting public health powers is shortsighted. Here's Wendy Parmet, a health law professor at Northeastern University.

WENDY PARMET: You can't assume that everything in the future is going to look either epidemiologically or politically like what we have seen.

HUANG: She says that the next pandemic could be very deadly to kids or one where Republicans might want more restrictive measures than Democrats, as they did during the Ebola outbreak. She says that the CDC needs to have flexible powers to deal with health threats effectively. Now, ultimately, Congress may need to step in and spell out the agency's powers, but with the current political climate, it's not a clear path.

SHAPIRO: That is NPR's Pien Huang Thanks a lot.

HUANG: Thanks for having me, Ari. Transcript provided by NPR, Copyright NPR.