I’m shocked. Shocked, that is, because he’s said this before but appears to have adjusted his position in the interim from a less constitutional to a more constitutional view.
Since when do Democrats, or any politician, really, care about constitutional niceties?
Back in June, he was asked if he’d use his executive authority to somehow require mask-wearing. Darn tootin’, he replied:
“I would go back to making sure that everybody had masks, that you had PPE lined up, making sure we stockpile all the things that we need and we don’t have now. The one thing we do know, these masks make a gigantic difference. I would insist that everybody in public be wearing that mask. Anyone to reopen, it would have to make sure that they walked into a business that had masks.”
Rice: Couldn’t you use your federal leverage to mandate that?
Rice: Would you?
Biden: Yes, I would from an executive standpoint, yes I would.
You can follow the last link and read my reply to that. Short version: There’s no reason to think the president or even Congress has the power to require Americans to wear masks. The Commerce Clause ain’t what it used to be in a post-ObamaCare world, after all. The Congressional Research Service recently took a deeper dive into the issue and also concluded that federal power to mandate masks is perilously thin. The Public Health Service Act allows HHS to promulgate regulations to prevent the transmission of infectious diseases, but only between states or from a foreign country into the U.S. And the regulations have typically been limited to temporary quarantine measures, not an indefinite mandate on how to live daily life.
Congress can pressure states to enact their own mandates by threatening to withhold federal funds but they probably can’t issue a mandate themselves. And even if they could, how would they enforce it? Which federal agency is going to walk the beat making sure 330 million people are wearing their masks? Under the Tenth Amendment, the feds can’t make state and local cops do it.
If you want a national mask mandate, the obvious way to go is through the states. Get all 50 governors to issue orders and, voila, you have a national mandate. Which, to my surprise, is how Biden is now approaching the issue per his press conference this afternoon:
“Every governor should mandate mandatory mask wearing," Joe Biden says. "The estimates by the experts are it will save over 40,000 lives in the next 3 months.” pic.twitter.com/4coSknXNio
— NBC News (@NBCNews) August 13, 2020
We’re already most of the way there. According to this count, 34 states now have statewide mask mandates in effect, including Republican strongholds like Alabama, Louisiana, and Texas. Of the holdouts, many are less populated rural ones, although there are notable exceptions. Arizona, Florida, and Georgia have all resisted statewide mandates thus far despite suffering sizable outbreaks, although in AZ and TX the governor has allowed local jurisdictions to issue their own orders, which means many state residents are under a mask mandate anyway. And in Georgia it looks like Brian Kemp is about to drop his lawsuit to prevent cities from issuing mandates, so lots of state residents there should soon be under orders to wear one as well.
It’s comforting to think that we could largely solve the pandemic by getting everyone to put on a mask. No doubt doing so would help hold down infections. But Texas has been under a mandate for six weeks and, although cases are down, they’re still not down far enough for the governor to feel safe reopening bars. Yesterday Texas had the most deaths of any state in the country, topping 200, and the third-most cases — and that’s with reduced testing, leaving one to wonder how many infections they’re missing.
If you want to expand the picture, 86 percent of Americans are now wearing masks indoors around other people according to Gallup. That’s probably been true for awhile; mask use had been increasing even before Trump started touting them in earnest. Even so, the U.S. just experienced its highest daily death total in one day since mid-May. We’ve added a million confirmed cases in the past 19 days alone despite plenty of political and media attention to the need for masks. Lord knows how much worse the pandemic would be if we all went around uncovered, breathing those germs on each other, but clearly masks aren’t a panacea. They’re part of a “do everything you can to prevent transmission” strategy, but just a part.
Here’s more from Biden’s presser today, encouraging people to “be a patriot.”
.@JoeBiden: "Be a patriot. Protect you fellow citizens…step up, do the right thing…let's institute a mask mandate nationwide starting immediately." @KamalaHarris: "That's what real leadership looks like." pic.twitter.com/wINZ5SDaDJ
— CSPAN (@cspan) August 13, 2020