Biden wants a national face mask mandate. Can he do that?

When Joe Biden accepted the Democratic nomination for president on the final night of the Democratic National Convention, he touched on what his national plan to fight the Covid-19 pandemic would look like. Part of that plan, he said, was a national mask mandate.

“We’ll have a national mandate to wear a mask — not as a burden, but to protect each other,” Biden said. “It’s a patriotic duty.”

Although Biden has voiced his support for a national mask mandate before, calling for one during his convention speech may seem like somewhat of a political risk, particularly given politicization of masks and the speech’s emphasis on national unity. But it’s a stance meant to present Biden in stark contrast to the current administration’s embrace of divisiveness.

And many polls suggest that the anti-mask contingent is a vocal minority, and that most Americans do support some kind of mask mandate. The question remains, however, if a national mandate is legally possible, and whether it could be enforced if so.

A majority of Democrats and Republicans support masks and mask mandates

Multiple polls have shown that the majority of Americans are in favor of wearing masks — including a majority of Republicans. That support appears to have only grown stronger over the summer. A Pew survey conducted in mid-June showed that 71 percent of more than 4,700 respondents thought masks should be worn at least most of the time; 86 percent of Democrats and 52 percent of Republicans agreed, while only 5 percent of Republicans thought masks should “never” be worn.

Things have changed since then, including President Trump (begrudgingly) endorsing masks and wearing one himself. The coronavirus has also become a more present concern for many — according to a CNN/SSRS poll conducted in mid-August, 67 percent of Americans now personally know someone who has been infected, compared to 40 percent in June.

More people feeling the impact of the virus for themselves (as opposed to just the restrictions placed on them because of it) for the first time may be playing a part in acceptance of such protective measures. A Gallup tracking poll asking whether respondents had worn a mask in the past seven days showed some dips in reported use among Republicans beginning in May, but a rise since July.

Gallup

And there appears to be growing support for the sort of mandate Biden suggested.

An Associated Press-NORC Center for Public Affairs Research poll in July showed that 75 percent of respondents (58 percent of Republicans and 89 percent of Democrats) were in favor of mask mandates, and the vast majority of them reported wearing masks themselves. And a more recent poll, conducted by The Hill/Harris X from July 26 to 27 found that 82 percent of them supported a national mask mandate — including 66 percent of Republicans and 93 percent of Democrats.

All of this suggests that the American people are in favor of both masks and a government mandate to wear them. But that doesn’t mean one is possible or practical.

A national mask mandate isn’t as simple as it might seem

Many other countries have national mandates, and almost every state in America has some kind of mask mandate at this point. But some authorities have been reluctant to actually enforce these mandates or issue fines to people who violate them, and several lawsuits have been filed over their constitutionality, including one from Georgia’s Gov. Brian Kemp suing the mayor of Atlanta over her effort to mandate masks in her city (that lawsuit has now been withdrawn).

Trump has refused to consider a national mask mandate, saying it should be up to governors to do what they think is best for their states. Last week, Trump said he was strongly against Biden’s national mask mandate plan — and questioned if the president would even be able to issue such an order.

“He wants the president of the United States, with the mere stroke of a pen, to order over 300 million American citizens to wear a mask for a minimum of three straight months … no matter where they live and no matter their surroundings,” Trump said in a press briefing. “He does not identify what authority the president has to issue such a mandate or how federal law enforcement could possibly enforce it or why we would be stepping on governors throughout our country, many of whom have done a very good job and they know what is needed.”

Trump also implied that mask mandates were a violation of Americans’ rights, saying, “We want to have a certain freedom. That’s what we’re about,” and, “Americans must have their freedoms.”

The legality of a national mask mandate has yet to be tested in the courts, owing to the unprecedented nature of the pandemic and its recentness (the Supreme Court has issued rulings about statewide church attendance restrictions — both against the church plaintiffs, citing the government’s right to protect public health and safety). So there isn’t a definitive yes or no answer on if or how a president could order a mask mandate or how it would be enforced, and legal experts who have weighed in on the subject are not in universal agreement.

Two law professors from Chapman University and the University of California Berkeley, writing in the Orange County Register, argued that the federal government doesn’t have the authority to enact a federal mandate, saying that public health and safety is supposed to be and always has been the domain of state governments. And they argued that if the federal government wanted a mandate, it would have to come from a law passed through Congress — not an order from the president.

A report from the Congressional Research Service, however, cited laws that could give the executive branch the ability to enact a mask mandate using powers it is granted during public health emergencies. However, the report also noted that federal enforcement of such an order might not be possible, given state and local authorities’ struggles to enforce the state mandates that have already been introduced. One political science professor and legal scholar at Florida Atlantic University, writing for Florida’s Palm Beach Post, might have summed it all up best with his answer: “Maybe.”

Of course, none of this will even be at issue if Biden doesn’t win the election in the first place (unless Trump does a very sudden U-turn and tries to order a national mask mandate). And the US is still months away from an inauguration, should he win. If and when that happens, perhaps we’ll have a firmer answer on a federal mandate’s legality.

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