President Joe Biden revealed this week that his administration is looking into whether he can federally mandate masks for all public school districts, even though such a policy would violate the states’ right to govern their own education and public health systems.
He at least seemed to understand the bounds of federalism: “I don’t believe that I do [have that power] thus far,” Biden told reporters. “We’re checking that.”
Biden’s advisers are going to be told the same thing they were told about the Centers for Disease Control and Prevention’s updated eviction moratorium: You can’t do that. Indeed, Biden’s team was told not just once, but several times, that any federal extension of the moratorium would be unconstitutional because of the Supreme Court’s recent ruling on the subject.
But did that stop Biden from moving forward with the moratorium? No. In fact, he admitted that he knew what he was doing would be struck down as illegal but said he didn’t care.
Why should we expect this universal masking policy to be any different? Biden is clearly willing to push the bounds of his authority; it’s only a matter of finding a reason to do so. With the eviction moratorium, the reason was that there are still people struggling financially because of the pandemic. With masks, it will be that the coronavirus is still a threat that requires aggressive federal action.
Pandemic or not, the president is limited by the Constitution. He cannot just do as he pleases. Biden knows this in theory. But in practice, he has realized there are ways to flout the system. So we shouldn’t be surprised when he insists on doing just that.
