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Early in the pandemic, United States health authorities did not advocate for the use of masks to stop the spread of COVID-19. However, their use has since been recommended in all public settings by the CDC. Polling has even shown three-quarters of Americans support a national mask mandate.

Joe Biden has called for such a mandate for months but concedes an executive order on the matter would almost certainly fall to an inevitable legal challenge.

The basis for this concession relates to the limits of presidential power prescribed by the U.S. Constitution. However, congressional research has also shown there are other avenues available to the incoming Biden administration which could help facilitate a national mandate.

What are these options, and why won’t they succeed?

Option 1: Use the HHS Secretary

Although an executive order would likely not stand up to scrutiny by the courts, the incoming HHS Secretary Xavier Becerra may be able to utilise powers in the Public Health Service Act (PHSA) to achieve the same result.

Section 361 of the Act delegates him the authority to create regulations necessary to prevent the transmission of communicable diseases from foreign countries or between states. A broad interpretation of this power could result in a sweeping federal mandate by regulation.

However, any mandate established by regulation would be subject to constitutional limitations, or other federal laws such as the Religious Freedom Restoration Act.

Will it happen?

Unlikely. It would almost certainly be seen by some legislators (and a portion of the public) as an underhanded way of circumventing the limited powers of the executive branch.

A broad interpretation of Section 361 by the courts is also not a certainty. The surrounding text in the section refers to specific measures such as quarantine, and treatment of areas to prevent disease. The powers delegated to the HHS Secretary would likely be interpreted as being limited to a narrower set of circumstances, despite the broad language used to describe the power itself.

Option 2: Conditional grants of funding by Congress

Article 1 Section 8 of the U.S. Constitution permits Congress to ‘tax and spend for the general welfare of the United States’. This is colloquially known as the power of the purse.

Rather than relying on the executive branch, Congress could incentivise states to enact mask mandates by legislatively tying them to the release of federal funds.

This would be a safer avenue for the Biden administration, provided the mandate requirement is drafted in such a way so it is related to the purpose of the funds themselves. However, if passed it would still be subject to the same constitutional and religious freedom limitations described above.

A legislative approach also does not prevent the risk of a legal challenge, which once again would be a near certainty. However, Chief Justice John Roberts recently held that public health decisions during a pandemic are entrusted to politically accountable officials — not the judiciary.

This implies that the courts should leave health measures such as mask mandates intact as judges lack ‘the background, competence, and expertise to assess public health’ and are not accountable to the people in the same way elected representatives are.

Will it happen?

For a legislative mask mandate to pass Congress unencumbered, two things need to occur.

  1. Both Georgia Senate seats need to be won by Democrats, resulting in a 50/50 split (VP-elect Harris would then be able to break any ties).
  2. The Senate filibuster would need to be wound back or abolished.

Although the Democrats have a chance of picking up both seats in the upcoming run-off elections, the filibuster issue is unlikely to be resolved in the short term. Check out this excellent explainer by Brookings fellow Molly E. Reynolds to see why.

Photo by Manny Becerra on Unsplash (https://unsplash.com/photos/PCbpcMAY_ew)

What other options are available to Biden besides a federal mandate?

Mandate masks on federal property

Joe Biden has publicly stated that on his first day in office he would issue an executive order mandating masks within federal buildings. If this order was widened to include all federal land, it would cover approximately 28% of the United States.

Work with governors to establish state wide mask mandates

According to the AARP, 12 states have limited mask mandates, or no mandate at all. Biden has said he intends to work with governors to change this.

However, the opposition of certain governors to masks (even in the face of rising COVID-19 cases) will be a significant hurdle.

Continue to advocate the public health benefits of masks to the public

This has been a pillar of Biden’s public health message for months, although the effect on the public’s attitude towards masks is unknown.

That being said, the bully pulpit has been used to President Trump’s advantage over the last four years. It is possible Biden may become more effective at shaping the public perception of masks once he takes office.

Conclusion

Although there are several methods available to the incoming administration, mandating masks on a national level will be a difficult, if not impossible task.

Biden’s only real way forward is to follow through with methods he has already stated publicly, namely mandating masks on federal land, working with governors, and continuing to advocate the benefits of masks to the public.

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