Why Is the Federal Government Setting National Rules for Masks in Subways and Taxis?

Plus: An upcoming Very Serious podcast about disasters

Dear readers,

Welcome to another free issue of the Very Serious newsletter! I hope you had a good weekend.

In case you missed it, I wrote for paid subscribers on Friday about the folly of efforts to involve the Federal Reserve in climate change mitigation; over the weekend, I responded to many of your responses about Daylight Saving Time, Los Angeles, and coffee. I encourage you to check out either post.

I also appeared on today’s edition of Vox’s Today, Explained podcast to once again defend seasonal daylight saving time against someone who wants to replace it with something worse. You can listen to that podcast here; my debate segment starts at 14:54.

Below, I have a request for your questions for an upcoming Very Serious podcast with Juliette Kayyem, former Assistant Secretary of Homeland Security and author of a new book (out next week) about disaster preparedness.

But first, there’s a topic I’d like to discuss where I’m confused about how the federal government even ended up involved.

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Stay in your lane: As states and cities (and private organizations) have been lifting various COVID-driven mask mandates, a particularly prominent one remains: A federal rule requiring that people wear masks on “conveyances” and in “transportation hubs.” This rule is understood as applying to airlines and airports, which it does. But it also applies to a wide variety of surface transportation: trains, buses, even taxis. The mask rules on the New York City subway, for example, are not imposed at the choice of the Metropolitan Transportation Authority. The MTA is required by federal regulation to impose them. Similarly, Uber and Lyft must require masks in ride-share cars nationwide.

NEW YORK, NEW YORK - People ride a New York City Transit F train on March 11, 2022 in New York City. (Photo by Spencer Platt/Getty Images)

While I think the time has come to let the airline mask mandate lapse, its federal structure has made sense in general. Airlines and airports are already heavily regulated and policed by federal authorities. The airlines (which now want the rule lifted) had previously asked the federal government to impose a national rule because that would make it easier for them to enforce their own mask rules on sometimes-recalcitrant passengers. Most air travel is interstate or international, and the long distances involved mean it can be a key driver of national (and international) disease spread.

But how are mask rules on local, intrastate transportation — like buses and taxis — supposed to be any of the federal government’s business? Why shouldn’t New York decide what you have to do in a New York taxi?

You could say the prevention of COVID spread in general is a matter for the federal government, and it should do whatever helps. But COVID situations and public preferences are different across geographies, which is a reason these decisions have generally been devolved to the state or local level, with the federal government acting only as an advisor. The federal government does not tell states whether they must generally require masks in offices or retail stores. The CDC issues recommendations about masking in schools, but it’s up to states and localities to decide whether to adopt those recommendations into their own rules governing public or private schools.¹

The subway/bus/taxi/Uber situation is highly unusual, with the federal government purporting not just to advise but to instruct a wide variety of public and private entities to require masks in contexts of essentially local concern. It should butt out and leave these questions to more local authorities, especially now that there is such a clear preponderance of local authorities (even in blue areas) seeking to relax the rules.

Last week, the Senate voted to take this matter into congressional hands, passing a Congressional Review Act resolution that would override the CDC and the White House to rescind the transportation mask rule generally, for both air and ground transportation. That the resolution passed 57 to 40 is a reflection of where mask preferences are today: Senators, like local officials, understand the public is ready for these rules to go.

I actually would have voted against the CRA resolution, because the way the CRA works is that when Congress rescinds a rule, federal agencies are prevented from imposing a substantially similar rule in the future. It’s possible there could be a time in the future when a federal airline mask mandate is again appropriate, and I think the power to impose one should be left in the administration’s hands. But it would behoove President Biden to act swiftly to lift the rules in place today, especially as they apply to surface transportation. If you want to retain the discretionary authority to impose rules that might be needed in the future, it’s especially important not to abuse that authority in the present.

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Both sides of the boom: Juliette Kayyem was a frequent guest during my time hosting Left, Right & Center, but not usually for happy reasons — she’s an expert on disasters, so when we had her on, often that meant something bad had just happened.² So I’m glad to be taping an episode of the Very Serious podcast with her where we will talk about a non-disaster event: the release of her new book, The Devil Never Sleeps: Learning to Live in the Age of Disasters, which will come out next week.

The book seeks to provide a general framework for preparing for and responding to disasters, going beyond topic-specific investments we need in things like medications and levees. In particular, Juliette is concerned that we’re not focusing enough on investments that help us in the “right of boom” phase of disasters: that is, not what might stop a disaster from happening (that’s what you work on to the “left” of the boom) but what might minimize the disastrousness of the disaster when it has just hit.

We’ve just been through two years of disaster response that were pretty unsatisfactory to almost everyone, so COVID provides a lot of lessons and room to learn. But as Juliette notes, mishandled disasters are everywhere you look: the Deepwater Horizon oil spill, the Boeing 737 MAX launch, the Texas power grid failure, and many more. Juliette argues “never again” is the wrong response to these crises. They will happen again, and if you convince yourself you’ve found a strategy to change that, you won’t be prepared when they do happen again. Instead, you have to be ready, and she’ll discuss with me what exactly “ready” means.

I’ll be taping with Juliette tomorrow afternoon, so if you have questions, please email them today or tomorrow morning and I’ll try to include them.

I’ll be back tomorrow with the Mayonnaise Clinic.

Until then,

Josh

1. Last month, the CDC used its “enforcement discretion” to lift the rule that people must wear masks on buses, but only with regard to buses operated by school systems. Yet in other areas of mask policy, schools have been advised to keep strict rules for longer than other kinds of institutions that are riskier for COVID spread, such as bars. It’s another example of the arbitrary yet often mandatory distinctions the government has drawn around masking, almost as if seeking to demonstrate that the whole enforcement regime is farcical.

2. Or was about to happen. The first time we discussed COVID-19 on the show was with Juliette on January 31, 2020.