Joe Biden is sending mixed, if not contradictory, messages about what legal form his national mask mandate would take amid uncertainty about whether the president has any authority to mandate the wearing of face coverings.
President Barack Obama faced criticism while in office when he projected not having to wait for Congress to make sweeping changes across the country, saying, “I’ve got a pen, and I’ve got a phone” — the “pen” referencing his ability to sign executive actions and the “phone,” his power to court support for his agenda.
The former vice president and Democratic presidential nominee has been clear that he would utilize the “phone” to ask state and local officials to implement mask policies, but he has not been clear with voters, and seems to lack clarity himself, about how he could use the “pen” in relation to masks.
In the last month, Biden has adjusted his promise on how he would implement a national mask mandate three times.
Biden pledged to institute a national mask mandate if elected president in his convention speech accepting the Democratic presidential nomination on Aug. 20.
By Sept. 2, following widespread skepticism about whether he would have the authority to implement a nationwide mandate, Biden acknowledged that there could be constitutional limitations to the president requiring mask-wearing.
“I’m a constitutionalist,” Biden said, adding that he would put pressure on state and local officials to institute mask mandates. He criticized his former presidential primary opponents, who said that they would rely on executive orders to achieve their goals.
Biden reasserted potential legal authority to mandate masks on Wednesday.
“There’s a question — I think it can be answered in the positive — a question whether I can mandate over state lines that every single state has to comply. Our legal team thinks I can do that based upon the degree to which there is a crisis in those states and how bad things are for the country,” Biden said, adding that he would issue an executive order on the topic if he found he could legally do so.
But the next day, Biden seemed to return to his previous position focusing on outreach to state and local officials, except for on federal property. “I cannot mandate people wearing masks,” Biden said. “On federal land, I’d have the authority. 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.”
Biden’s campaign did not return an inquiry seeking further clarification on what form any potential legal action from a Biden administration on mask-wearing would take.
His lack of clarity in articulating a position could be related to a lack of legal consensus on the matter.
A Congressional Research Service report released in August said that executive branch authority to mandate the wearing of face masks could come from broad interpretations of powers delegated to the Centers for Disease Control and Prevention on the wearing of masks in instances “that would prevent the foreign or interstate transmission of COVID-19.”
But the report said that those laws have generally limited interpretations, ultimately saying that it is difficult to determine whether the executive branch has the authority to mandate the wearing of face masks.
Ilya Somin, law professor at George Mason University, told the Washington Examiner that he does not think that the president has the constitutional authority to mandate mass mask-wearing without Congress taking action.
But Somin said that the Trump administration’s argument about its authority to put a moratorium on evictions, if upheld by the courts, would likely mean that Biden does have the authority to mandate mask-wearing. The administration argues that the CDC can bar landlords from evicting tenants based on its authority to institute rules that prevent the spread of communicable diseases.
Somin doesn’t think that the Trump administration’s position is constitutional either, arguing that the Supreme Court has said that there are limits to how much power Congress can delegate toward the executive branch. The rule is being challenged in court.
But Biden’s authority to use the same CDC statute to mandate mask-wearing is less of a stretch of authority than Trump using it to bar evictions, Somin said.
“If Biden were to follow this model with a mask mandate, he would probably have to get the CDC director to issue the directive rather than just sign an executive order himself. But that probably wouldn’t be too much of an obstacle,” Somin said.
There is also an argument to be made that the federal government could mandate mask-wearing due to Congress’s power to regulate interstate commerce, perhaps explaining why Biden mentioned “over state lines,” though Somin thinks that the Supreme Court precedent on that power is “seriously problematic.”
While he wishes Biden were clearer in how he intends to mandate masks, Somin appreciated Biden exercising restraint.
“There’s certainly a long history of presidents overreaching in various ways. That said, it is, to some extent, to Biden’s credit that over time, it seems like he’s come to realize that he can’t do this on his own,” Somin said. “Trump pretty much never admits that there’s something he would like to do, but can’t do.”
