This Week’s Featured Link
The DOJ will appeal the recent mask ruling by a federal judge – NPR
Words fail me on this one. Sure, there are plenty of arguments out there about the judge that struck down the mask mandate being unqualified and all that, but this seemed like a blessing in disguise for the Biden Administration. Now, it’s going to try to challenge the repeal even though it was expected to go away in a couple weeks? I understand that this is following CDC guidelines, but with nobody being required to wear masks on the ground any longer, why try to force the issue in one of the safer places around (on an airplane)? Can you imagine how miserable it’ll be to deal with anti-maskers on airplanes if this gets reinstated?
Image of the Week
I get it, a new kid movie comes out and Allegiant paints a plane with the stars stealing the airline’s sun logo. Cute… but having “The Bad Guys” painted on your airplane doesn’t really seem like a great plan. After all, if you ask every late night comedian, that moniker belongs to Spirit.
Two for the Road
Mitsubishi SpaceJet has first of its prototypes dismantled – Air Data News
In case you thought the SpaceJet might get made someday… it’s not looking great.
Marana-Bound: Barely-Used Private Boeing 747-8 Heads To The Desert – Simple Flying
Well this is a sad turn of events.
33 comments on “3 Links I Love: DOJ Appeals, Allegiant Bad Guys, SpaceJet Scrapped, 747 to the Desert”
Cranky,
My suspicion is the appeal on the mask mandate is less about masks and more about the CDC’s rulemaking ability. On the mask mandate, the toothpaste is already out of the tube and it’s darn hard to put it back. At this point, it will be unbelievably difficult to gain compliance with a reinstated mandate, barring some major disease problem.
At ORD on Wednesday, just looking around, about 7 of 10 passengers were mask-free. That may be understating how many folks didn’t wear masks. At MCO, there appeared to be a smidgen more masked people — but not many more.
I think you’re right. The ruling ultimately isn’t about masks specifically, but a generalized argument that regulators don’t have authority to take action to fulfill their charter that isn’t explicitly authorized by Congress. That’s the reverse of current law and precedent, and if it stands it would mean that no regulating agency would be able to determine for themselves how to regulate. They’d effectively become advisory boards and regulations would be issued by Congress. CDC can no longer issue a mask mandate unless approved by Congress, perhaps FAA couldn’t issue an AD or send inspectors to inspect, EPA wouldn’t be able to prohibit pollution unless so approved, OSHA wouldn’t be allowed to shut down dangerous facilities unless so approved, and so on.
Having recently flown in European countries that have been maskless for a while, I can say people who were showing strong symptoms of respiratory illness were common and always unmasked, and frequently not even trying to cover their coughs. Good bet the most flights will have 2-3 contagious and unmasked people on them. Also good bet that most airlines will have staffing issues over the next 2-6 weeks. Have fun out their, stay safe, and please be considerate of the many people for whom this is still a potentially life-altering disease.
Eric C, the problem with your logic is that we have passed laws giving the FAA the right to regulate air travel. OSHA is legally responsible for workplaces.
There is no legal authority for the CDC to order masks on airplanes. The FAA could theoretically do so, but CDC does not have broad legal authority over air, bus, train, and Uber/taxi travel.
And why would the airlines have staffing issues? You act as if masks actually stop disease spread. They don’t, not the way we use them.
Not the way you used them, apparently.
Regarding legal authority, we will see what appeals courts say.
That is incorrect. The Public Health Act of 1944 allows for the Surgeon General to make and enforce regulations that prevent the transmission of communicable diseases from one State to another State. What the judge in Florida did was use some pretty bad judgement as she felt the act only allows for “sanitation” purposes. This is what you get from a judge that was deemed unqualified by the ACLU.
I do however agree with you that clearly intrastate transportation would not be covered. But lets take a PATH train from NJ to NY for example. So they end up doing a blanket ban. This is a gray area (especially for Uber/Taxi where in most areas state lines are not crossed).
I am not for keeping the mask mandate in place, however I hope there is a continued public health campaign to make masks more socially acceptable — akin to Japan — that they should be worn when someone is sick with a cold, but not “stay home under the covers”. As someone who works in a manufacturing setting for 8+ hours often and wears a mask I find it of little inconvenience at this point, and find those that whine about it to be rather . . . how should we say. . . snowflake in nature?
Jim, the judge was ruled deemed unqualified by the American Bar Association as well. This is more important than any position on her judgeship than the ACLU, as the ACLU has specific political positions. The ABA on the other hand is more narrowly concerned if she is qualified to be a judge, it’s related to specific trial and legal experience, irrespective of a political position.
I mistyped and apologize. You are correct Nick. The ACLU might rate judges but the bar is the gold standard.
wow, you’re a legal and an infectious disease expert all in one?! Do you have a hot take on Ukraine too, while we’re at it ;)
The rule making authority of government agencies EXISTS, its the fact the rules were NOT followed to enact said rule.
An NPRM was not issued. That is one of the few holdups this “unqualified” judge saw. Most of us against the mask mandate saw it too.
Sad that the press and some have made this a political issue. And even bring up the judge’s age. I wonder if our Declaration of Independence should be invalidated too, since the author of it was only 33. The youngest signers were “babies” at 26. I bet the Bar association would have threw out our Declaration too!
“Most of us against the mask mandate saw it too.”
I think you greatly overestimate the general public’s understanding of law and federal policy.
In any case, the judge struck down the rule on *both* the ‘exceeded statutory authority’ and administrative procedure act grounds, with the former based on an extremely narrow and historically inaccurate reading of the word sanitation. In my view the federal govt really has no choice but to appeal on the question of statutory authority.
Correct Eric C. The term for that is “strict constructionism.” Put simply – if it’s not in the charter it can’t be enforced by that body.
Exactly right Davey. If the judge’s ruling is overturned I do not expect the mask mandate to be reinstated. In any case, just looking at the logic of masking on an airplane is too narrow of a focus. Masking was also mandated on trains, buses and in airports. Personally I would still mask in those places mandate or not.
Ya know, I’m surprised that USAF hasn’t looked into taking up that 748. They always said they’d prefer having three 747s to use at Air Force One, so that they could have one down for maintenance, while the other two are available.
I’m curious if they’ll pick this plane up?
Nick – Those aircraft used for the president are so highly modified I’d be surprised if they could even use this airplane.
Of course it would have to be modified. The future 748-8i Presidential transports began life a NTU planes for a Russian airline. This one would have to be stripped down a bit more, but it’d have to be modified to the same way as those other two 748s. Also the US government has experience checking for illicit surveillance devices. Janet, the airline that served Area 51 from LAS flies ex-Chinese airlines 737s, that is nearly as sensitive as AF1
Will the E175 end up being the last 76-seat jet ever produced?
Mitsubishi could restart the CRJ programme, either at Mirabel in a partnership with Canadair, or elsewhere, or sell the programme to someone else.
India was also working on a regional jet program, and China could develop a smaller version of the ARJ-21.
Not holding my breath on any of these, but if there’s enough demand someone will step in.
It doesn’t seem likely that the Indian or Chinese regional jet programs would constrain their design to hit the 76-seat limit imposed by US scope clauses. Seems like economics and current engine tech favors an aircraft a bit bigger than that.
Not sure what regionals will do as current aircraft gradually reach the end of their economically valuable life. Hard to imagine them buying too many more E175s given how inefficient they are compared to modern GTF engines.
The possibilities as I see them:
1. The US legacy airlines manage to negotiate a relaxed scope clause that allows regionals to fly the E175-E2.
2. Regionals start flying turboprops again (e.g. ATR72 or Q400), since scope clauses don’t cover those aircraft.
3. Contract flying by regional airlines gradually ceases to exist, and the routes are either dropped or picked up directly by the mainline, possibly at lower frequency. Maybe mainlines buy more small aircraft (more A220s or some E195-E2s) to handle these routes.
#1 seems unlikely. None of the legacies is making moves on #2, and the pilot shortage would make it tough to pull off profitably anyway. So it seems like we’re coasting towards the end of contract flying by regionals? Any other possibilities?
They never replaced the EMB-120s (Brasilias) with anything similar. Horizon is getting rid of their Q400s. Doubt that anyone is going to bring them back. More bus service on the horizon for smaller markets?
General pilot shortage and incremental ratcheting up of pilot and FO flight hour requirements have made commercial service on aircraft in the 10-69 seat range increasingly non-viable. Higher costs for crew require more passengers to spread that cost over. Still makes sense for airlines to use the 50-seat jets they currently have (although they would use larger aircraft if not for scope clauses), but it won’t make sense to lay out substantial capital on new ones. Even the capital cost of major overhauls gets dicey.
70-seaters will continue to get flown until they’re almost inoperable, because economics are a bit better than the 50-seaters, and the legacies don’t have any real flexibility to use something bigger.
More bus service would still mean death for the current regional airlines – they’re not going to turn into bus operators.
I guess another possibility is that one of the electric plane startups creates a plane that is large enough to be profitably operated under Part 135, and attractive enough to passengers (because electric = cool?) that they are fine with the fact it has propellers. Given the long development cycle of large aircraft, I doubt this will happen in time to bail out the existing regional operators, but you never know.
The Administration is challenging the mask ruling to avoid it setting a precedent for future emergency orders. On the other hand, if a higher court upholds the ruling, it could cement the precedent in place. It’s a high-risk strategy and could backfire.
Highly unlikely since this Supreme Court has looked at this a few times and has upheld mask mandates.
In addition, I’d say there is very little chance that Gorsuch goes along with this judge’s reading of the public health act of 1944.
I am a Democrat and can’t stand Trump or most of his judges…that said this ruling is correct. If nothing else, we should not have unelected bureaucrats ordering societal limitations, regardless of the need.
It’s a slippery slope. We give them the power to shut down businesses and take away freedoms, and where does it stop? A leader could declare an emergency and cancel elections.
We need a mechanism for emergencies, such as wars, pandemics, or major terror attacks, with checks and balances in place. We have none, and either side could theoretically exploit some “emergency” to grab more power.
And the mandate is stupid anyway.
NPRM wasn’t followed. That was one of the reasons thr judge threw it out, too.
Congress in its current form could not produce rules or laws that are specific enough to manage the day to day operations of the country. Could you imagine Congress approving every AD or having to get involved in airspace rules? They don’t have the expertise or even the time to do this. Congress created the administrative state for a very good reason.
There are checks on the “unelected bureaucrats” a/k/a the Executive branch, specifically the Judicial branch and the Legislative branch. The Judicial branch can and does act quickly, the Legislative branch, not as much.
That’s why we have the NPRM process, which wasn’t followed.
The US Senate already had a bipartisan bill passed to void the mask rule, and Speaker Pelosi has not scheduled it for a vote.. I wonder why….
And that is one of those examples of congress not working. It’s far too easy to gum up the process in congress.
The appeal of the mask rolling is not about masks. If it was they would have immediately asked for a stay. It’s about about not letting a bad decision poison the well.
I think the mask mandate should expire, but this decision is just bad, and will mean trouble in the future if it stands. This isn’t because I don’t like the result of the decision, but the actual substance of the decision. Have you read it? It really bizarre from a legal perspective. I think she could have made a much better legal argument for striking down the mandate.
“I think the mask mandate should expire, but this decision is just bad, and will mean trouble in the future if it stands. This isn’t because I don’t like the result of the decision, but the actual substance of the decision. Have you read it? It really bizarre from a legal perspective. I think she could have made a much better legal argument for striking down the mandate.”
Seconded.
Meanwhile, PATH, MTA in both NYC/LA, MUNI & MBTA reimposed mask mandates along with the cities of Boston & Philadelphia in indoor settings. Also masks are required at LGA as well as JFK, but not at EWR.
Dems apparently are trying to get beat in the midterms. Masks are highly unpopular and the general public is over them.
If the battle over facemasks are enough to cause democrats to lose the midterms, then we’ve got far bigger problems. And this is coming from someone who is over the mask thing.