Biden can strongly urge —but not mandate—mask-wearing

In an attempt to get the coronavirus outbreak under control, President-elect Joe Biden plans to more aggressively require Americans to don face coverings outside the home. His transition website says Biden will be “asking the American people to do what they do best: step up in a time of crisis.”

But the requirements do more than just ask. Biden wants all state governors and local authorities to make public mask-wearing mandatory.

The Centers for Disease Control and Prevention cite several studies showing masks prevent respiratory droplets that might carry the virus from spreading. The CDC urges everyone to wear masks, especially when they cannot stay 6 feet apart from others.

Although 37 states have face-covering orders, the COVID States Project found mask compliance rates of below 80 percent in most states during the fall. In 14 states, the rate was less than 70 percent.

People who choose not to wear masks in public point to contradicting studies and government overreach. Can Biden make them change? The news outlet Vox referred to the mask mandate as a “mask suggestion” just a week after the election, saying Biden could not enforce such orders on U.S. citizens. In an analysis piece in early November, CNN reported that any such action would open the government to severe legal challenges.

The nonpartisan Congressional Research Service prepped a brief for members of Congress on the legality of a federal mask mandate in August. It said the president could issue an executive order using emergency powers to require mask-wearing across the country, but the legal basis for such action was flimsy at best. The CRS pointed to Section 361 of the Public Health Service Act (PHSA) as the most likely source of authority for an executive mask mandate.

The act gives the surgeon general and his subordinates such as the CDC the power to prevent the “spread of communicable diseases” between states. On its face, it sounds like a blank check to the executive branch. But legal scholars Lawrence Gostin and Glenn Cohen, with former CDC Director Dr. Jeffrey Koplan, wrote in the Journal of the American Medical Association in August that the PHSA does not give the CDC much power beyond quarantining infected individuals.

“This authority is unlikely to extend to regulatory actions such as requiring masks,” they wrote.

A congressional mandate, another option the CRS looked into, seems unlikely if Republicans maintain control of the Senate. Some Republican governors such as Mike DeWine of Ohio and Asa Hutchinson of Arkansas have instituted mask-wearing orders, but a nationwide rule would be another matter. Other GOP governors, including Kristi Noem of South Dakota, have refused to institute mask mandates and say they would reject any federal order. Noem argued a state should have the power to decide on its own whether it will require face coverings.

“I’ll continue to encourage each and every one of you to exercise personal responsibility and make smart choices,” she tweeted before Thanksgiving.

That does not leave the federal government without any options. In 1984, Congress encouraged states to institute a minimum drinking age of 21 by passing the National Minimum Drinking Age Act. The law took a portion of federal highway funding away from states that didn’t move their drinking age. South Dakota, Noem’s home state, sued Transportation Secretary Elizabeth Dole, arguing the law was unconstitutional.

In a 7-2 decision, the Supreme Court upheld the law, saying Congress had not taken away so much funding “as to pass the point at which pressure turns into compulsion.”

Gostin, Cohen, and Koplan in their August article suggested Congress could do the same thing to encourage states to institute mask mandates.

“The court probably would similarly uphold a federal law designating a reasonable portion of COVID-19 emergency funding on the condition that states issue mask directives,” they wrote.

Democratic Sens. Ed Markey of Massachusetts and Richard Blumenthal of Connecticut have already tried that option. They introduced a bill last week to grant $5 billion in emergency funding to states that have mask mandates. The bill is unlikely to pass, but it could become a template for future action if Democrats take over Congress by winning the two runoff elections for the Senate in Georgia in January.

It still might not be enough leverage to convince leaders like Noem.

“We trust folks to make the best decisions for themselves and their loved ones,” her spokesman Ian Fury said.