By Morgan Sandhu, J.D.
On his first day in office, President Biden instituted a mask mandate for airports, on many forms of transportation, and on all federal property. Over the last year, mask wearing has become politicized, making swaths of the country “stubbornly resistant to the practice,” despite its clear public health benefits. President Biden’s swift action was a clear signal and a stark break from President Trump’s derision of masks. Yet to many, Biden’s executive orders fell short of the hoped-for “national mask mandate.”
This blog post addresses three key questions. First, did Biden have the power to do more than he did? Second, how will compliance be secured, both for the mandates already issued and from states that are reluctant to enact and enforce their own mask mandates? Finally, how are mask mandates already on the books being enforced?
National mask mandate — did President Biden have the power to do more?
For the last year, scholars, politicians, and the public have vigorously debated whether the President or Congress has the power to enact a national mask mandate. The United States remains under a national State of Emergency, expanding the powers potentially available to the executive. Yet the question remains unsettled. As a Staff Attorney for the Congressional Research Service wrote, “There are no existing federal laws that explicitly address mask wearing for public health purposes, but certain existing authorities could potentially form the basis for such executive action.” The most commonly proposed basis for executive action is Section 361 of the Public Health Services Act, which “grants the Secretary of Health and Human Services — delegated in part to the CDC — the authority to make and enforce regulations necessary ‘to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession.’” However, the scope of Section 361 is quite unclear. At times, the law has been read to be “broad and flexible,” but generally it has only been interpreted to authorize quarantine and control measures for infectious people, animals, and goods. Given the law’s ambiguity, it would ultimately be left to the courts to decide the scope of the executive’s existing authority. Outside of Section 361, new Congressional authorization would probably be needed.
However, even if Congress were to act in lieu of or in tandem with the president, the constitutionality of a national mask mandate remains uncertain. Congress has a number of options, and their choice would heavily influence a mandate’s constitutionality. Though the Commerce Clause may provide constitutional authority for Congress to regulate, such a regulation is unlikely to be upheld by the courts as constitutional, particularly in light of NFIB v. Sebelius. In NFIB, Chief Justice Roberts opined that the Commerce Clause does not allow Congress to compel individuals to do something; mandating masks would be an affirmative act, requiring individuals to do something. The most constitutionally secure path would likely be Congress requiring state enactment of a mask mandate as a prerequisite to states’ receipt of certain funds; this use of the Spending Clause to pressure states to act is similar as to what was done to incentivize states changing the drinking age. However, such a spending requirement would need to be sufficiently low and insignificant to be non-coercive, leaving the exact bounds of Congress’ power yet undefined.
Given the constitutional questions that remain, if President Biden were to order a national mask mandate or Congress were to enact one, a legal challenge is virtually certain. Challenges to mask orders thus far have been unsuccessful; courts have generally rejected challengers’ contention that masks abridge their freedom of speech or liberty.
However, a challenge to a federal mask order would be different. Beyond the freedom of speech and liberty claims, the core of the challenge would likely be whether the Federal government was infringing upon the 10th Amendment by regulating something that should be left to the states. Scholars have not reached a consensus on the likely outcome of such a legal challenge; the legal uncertainty of any national mask mandate would create an opening for political opponents to further attack and undermine it.
In contrast, President Biden’s current pair of executive orders seem tightly written to avoid any legal challenge. This seems to underscore a key achievement of Biden’s executive orders: their symbolism. As public health experts told The Washington Post, “As important as the practical implications . . . is the symbolic weight of the orders. By mandating masks on federal property, for example, it could force masks on Republican members of Congress who have made a point not to wear them.” Legal challenges to the new mask orders have already been filed. President Biden may have made a calculated decision that an unassailable and achievable set of mask orders would be better than a more ambitious, but perhaps more tenuous, national mask mandate. Further, the executive orders may help Biden to “use the power of the office to cajole and coax people into a sense of duty.”
Will states comply with Biden’s Executive Order?
Another important element of President Biden’s approach to nationwide mask wearing is to ask governors to enact and enforce mask mandates at the state level. A majority of states do have at least some mask mandate currently in place. But, for those that remain resistant, what power does President Biden have to prod states into compliance? Unfortunately, little beyond his influence as president. This may create a challenging dynamic for Biden. The governors of many states, especially in more conservative states, remain resistant to mask mandates. After hearing of then President-elect Biden’s plans to personally appeal to governors, a number of them immediately and openly rebuffed his planned outreach. Since the initial outreach, things have only escalated. As of early March, the governors of Texas and Mississippi both rescinded the states’ mask mandates, coming into direct confrontation with Biden. However, without more strategic pressure or a new plan, Biden may be at an impasse.
Beyond the mandate — enforcement:
The final critical question is what happens once mask orders are in place. States and localities have taken very divergent approaches to enforcement thus far. Most local mask mandates have been enforced primarily through encouragement, not sanctions or coercion. For example, in Cambridge, Massachusetts law enforcement has enforced the mandate by offering the unmasked a mask, despite the availability of more stringent options like fining the offender. Other cities have experimented with escalating sanctions, where a first time offender receives only a warning, but subsequent non-compliance would result in fines. Virtually no localities have resorted to criminal penalties.
So, even if there were national mask mandate, the federal government would have relatively limited enforcement power. Most mandates have been enforced through encouragement not sanction. Further, the anti-commandeering doctrine underscores that the federal government cannot commandeer state resources, which means federal officials would have to remain responsible for enforcement or rely on voluntary cooperation from each state for enforcement.
For the executive order mandating mask use on federal property, President Biden has delegated responsibility to each federal agency to create a plan. The Office of Management and Budget published a memo providing guidance and “Model Safety Principles”; individual agencies are now working with the OMB to finalize their safety plans. The transportation mask mandate was implemented more directly, perhaps because it impacts the public more directly. The CDC has been primarily responsible for implementation, releasing a sweeping order. People violating the order could potentially face criminal penalties, but the CDC suggested civil penalties would be more likely as needed. Although the order will be jointly enforced by the Transportation Security Administration and federal, state, and local agencies, it is likely that much of the burden will still fall on transportation operators themselves.
Putting the logistics aside, other thorny issues related to enforcement remain. Several police departments have openly and candidly refused to enforce mask mandates, fearing they would find themselves in the middle of a political controversy. Further, as my colleague Daniel Polonsky previously wrote, the use of police to enforce emergency public health orders like mask mandates has been controversial and often has been done in a racially disparate way.
Beyond state-initiated mask orders, many businesses have put forth their own mask mandates. Yet enforcement has remained an enormous challenge for them as well. As The New York Times reports, when it comes to “enforcing those mandates, the companies are taking a decidedly hands-off approach” both in official corporate policy and in practice. Customers are often angry; at times they have become violent with employees. The enforcement challenges implicit in both state and private action underscore the challenges that remain for President Biden. His mask mandates are a strong start, but remain just a start.
This article was originally published on the COVID-19 and the Law blog
Morgan Sandhu graduated from Harvard Law School in May 2022.