During a recent flight, across the aisle from me, a four-year-old named Olivia demanded to know why she had to wear a mask, whereas her little brother, who was wrestling their mother for control of an iPad, could go maskless.  "Those are the rules" the poor woman said.  "Not fair!" Olivia fired back.  

On April 18, Judge Kathryn Kimball Mizelle, from the Middle District of Florida, agreed with Olivia and threw out the mask mandate for airplanes, trains, and other public transportation.  In her 59-page decision striking down the mandate, the judge cited the lack of public notice or comment on the rule, and she also found the mandate as written to be "arbitrary and capricious."  Cheers went up on airplanes as the announcements were made.

The administration is smart to let the mandate die, but not smart enough to recognize that in its attempt to simultaneously defend its unpopular mask mandate, it is missing a golden opportunity to pivot toward humble, rational risk assessment.  Instead, these people are continuing to divide Americans into the compliant and noncompliant, the good and the bad, the masked and the unmasked, using paper shibboleths.

If the administration had successfully fought for a stay, the mask mandate would have been reinstated immediately, while its appeal would essentially fight the ruling without reinstating the mandate.  Attorney General Merrick Garland was asked why he decided against the stay, which he called a "tactical strategy question."  So much for following the science.

A rule that said masks are necessary unless you are actively eating or drinking, under the age of three, or disabled never made any sense.  Olivia understood that.  Judge Mizelle simply finally made it clear in her ruling.  "The mandate makes no effort to explain why its purposes-prevention and transmission of serious illness-allow for such exceptions."  The ruling goes on: "nor why a two-year-old is less likely to transmit COVID-19 than a sixty-two-year-old.  The CDC does not articulate a satisfactory explanation, or any explanation at all, for its action, and fails to include a rational connection between the facts found and the choices made."

In a recent CDC update, Greta Massetti, Ph.D., MPH, of the agency's COVID-19 Incident Management Team, said Americans "can decide if they need to take extra precautions, including masking, based on their location, their health status and their risk tolerance."

That is precisely the kind of thoughtful response Americans have been waiting to hear.  Instead, we will be treated to a fake fight.  The polling is already being supplied to tell us what we know is not the case.  For instance, according to a recent Axios poll, 75 percent of Americans support a mask mandate in airports, and 46 percent say they will continue to mask if they travel, despite the mandate going away.

This week, on my first flight since the mandate was lifted, my unscientific poll of a nearly full 737 reports that one crew member and seven passengers wore a mask, while 200 of us did not.  My young friend Olivia and her little brother may have been on there.  Good work, Olivia!

Matt Dean (mdean@heartland.org) is senior fellow for health care policy outreach at The Heartland Institute.

Image: Roger Schultz.