June 23, 2021

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Can the President Mandate Face Masks?

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Several times during his campaign this year, President-elect Joe Biden said that he favored a national mandate requiring people to wear face masks in public to reduce the spread of the coronavirus.

Now that he’s ready to step into office on Jan. 20, can we assume that masks will be required everywhere?

In a word, no. Only governors have the power to issue that kind of order, not presidents.

This explains the wording about mask mandates that appears on a Biden transition team website that outlines how the new administration intends to tackle the pandemic. The site does call for implementation of “mask mandates nationwide,” but says that Biden intends to achieve that by “working with governors and mayors and by asking the American people to do what they do best: step up in a time of crisis.”

The ‘Soft Power’ of the Presidency

In other words, Biden intends to rely mostly on the soft power of his bully pulpit to get people to wear masks when they are in public.

But is there more he could do? The answer is yes.

Presidents have the power to issue executive orders covering federal land and federal buildings, and Biden has said that he would require face masks there.

Biden also said in an October speech that he intends to mandate masks in interstate public transport. A month earlier, the Centers for Disease Control had released a draft order to require masks on all airplanes, trains, buses, and subways, as well as in all transportation hubs, such as airports, bus depots, and train stations.

The Trump administration rejected that proposal, but Biden apparently intends to follow it. Some legal observers, however, question the constitutionality of CDC making that broad a rule.

Another option is economic incentives, which could be included in an upcoming spending bill.

The Public Health Service Act

A more remote possibility is to gain support for a liberal interpretation of a provision in the Public Health Service Act that arguably could pave the way for a national mask mandate. This provision, which the Congressional Research Service says “could potentially form the basis for executive action,” gives the secretary of health and human services the power to issue regulations to prevent the spread of communicable diseases from foreign countries into the U.S. or from state to state.

Could that provision be used to mandate face masks? The Congressional Research Service seems to be skeptical. CRS said the federal government could expect legal challenges no matter which interpretation they choose.

So, as we move forward into a foreboding winter and the specter of many more COVID-19 deaths – and more lockdowns – look for Biden to do whatever he can to get Americans to mask up. But don’t look for a federal mandate.

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