USA TODAY International Edition
Can Biden mandate masks for everyone?
It wouldn’t be as simple as a White House order
Throughout the presidential campaign, President- elect Joe Biden laid out several action items to combat COVID- 19, including supporting face mask mandates nationwide.
“This is not about Democrat, Republican or Independent,” he said in an address in August, when more than 165,000 people had died from COVID- 19.
“This is about saving American lives, so let’s institute a mask mandate nationwide, starting immediately.”
Now, with more than 10.2 million confirmed cases and nearly 240,000 deaths in the U. S., Biden this week unveiled a 13- member COVID- 19 task force, and the Biden- Harris transition team launched a website outlining the new administration’s plan to tackle the pandemic.
That plan doesn’t include a nationwide mask mandate. Instead, it outlines a policy of working with state and local leaders to enact mandates.
On the campaign trail, Biden said he wouldn’t – and couldn’t – issue a national mandate that everyone must wear a mask or face a fine.
“A national mandate is not possible because public health powers belong
to the states, not the federal government,” said Lawrence Gostin, director of Georgetown University’s O’Neill Institute for National and Global Health Law. “The federal government couldn’t implement its own mask mandates, nor could it force the states to do it.”
Instead, Biden said in an ABC town hall last month that he’d appeal to governors and mayors to enact mask mandates. “You can go to every governor and get them all in a room, all 50 of them, as president, and say ‘ Ask people to wear the mask.’ Everybody knows ( they work),” Biden said.
If that approach didn’t work, Biden said, he’d go to “every mayor” and “every council” to make the same request: “I’d go to every local official and say ‘ mandate the mask.’ Say: ‘ This is what you have to do when you’re out. Make sure you encourage it being done.’ ”
The Biden- Harris transition team website outlines the same approach. The new administration plans to “implement mask mandates nationwide 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 website says Biden will call for Americans to wear a mask when they are around people outside their household, for governors to make that practice mandatory in their state, and for local authorities to also make it mandatory “to buttress their state orders.”
Public health experts say face masks are an effective way to slow the spread of the coronavirus, but the inconsistent use of masks in the U. S. could lead to the cumulative loss of more than half a million lives by the end of February, according to a study published late last month in the peer- reviewed journal Nature Medicine.
Researchers from the University of Washington’s School of Medicine predicted that nearly 130,000 lives could be saved from the end of September through the end of February if at least 95% of the population wore face masks in public. If only 85% wore masks, nearly 96,000 deaths could be prevented, they said.
Harold Koh, a law professor at Yale University, said the phrase “national mask mandate” was misleading to describe the proposed Biden- Harris plan.
“It’s not a national mask mandate,” he said. “It’s a patchwork of overlapping mandates and normative policies.”
Biden said in a CNN town hall in September that he would issue an executive order requiring face masks on federal land and in federal buildings. He later said he would require them for interstate transportation, too.
“If you’re on federal land, you must wear a mask. In a federal building, you must wear a mask. And we could have a fine for them not doing it,” he told CNN
on Sept. 18.
A spokesperson for the Biden- Harris transition team told USA TODAY on Tuesday that no decisions had been made about executive actions.
“While no decisions have been made about executive actions and no memo about the topic has been sent to the President- elect, he has the same levers at his disposal as all of his predecessors to address the crises facing the American people,” the spokesperson said.
Biden also could require states to follow Centers for Disease Control and Prevention guidance to qualify for certain federal funds, Gostin said. “There are ways to encourage it through the bully pulpit and to incentivize it,” he said.
There are no federal laws that address mask wearing for public health purposes, but there are provisions that could form the basis for executive action, according to a legal sidebar from the Congressional Research Service.
Section 361 of the Public Health Service Act grants the secretary of health and human services the authority to make and enforce regulations necessary “to prevent the introduction, transmission, or spread of communicable diseases” into the U. S. or between states. A “broad construction” of the provision could allow the CDC to issue regulations mandating the use of masks in those situations, according to the sidebar.
If Biden did seek a nationwide mask mandate, it would be challenged “immediately,” said Josh Blackman, a constitutional law professor at the South Texas College of Law.
“The devil’s in the details,” he said. “We have to see what he’s actually trying to propose.”
Thirty- four states require people to wear face coverings in public, according to a list maintained by AARP. The list includes Utah, where a statewide mandate took effect Monday. The District of Columbia and Puerto Rico also have mask orders in place.
The mandates include some exceptions but generally require masks in indoor public spaces such as restaurants and stores, on public transit and ridehailing services, and outdoors when unable to stay 6 feet from others. But many cities and states don’t regularly enforce face mask policies.
Sixteen states don’t have a statewide mask mandate: Alaska, Arizona, Florida, Georgia, Idaho, Iowa, Mississippi, Missouri, Nebraska, New Hampshire, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee and Wyoming. Though these states do not require masks in public places statewide, most recommend masks or require them for some employees.
Republican strongholds, in particular, have been reluctant to adopt mask mandates. It was not immediately clear how Biden planned to convince state and local leaders otherwise.
“It might just be incentives to states to enact their own laws. I’m doubtful that Biden can really do much here on his own,” Blackman said.
More than 100 countries had issued nationwide mandates requiring face masks in public as of August, according to the Council on Foreign Relations. The countries varied widely in when the mandates were instituted, how they were enforced and what percentage of the population reported regularly wearing masks. Countries with mandates are among the most and least infected.
“There are ways to encourage ( wearing masks) through the bully pulpit and to incentivize it.” Lawrence Gostin Director of O’Neill Institute for National and Global Health Law