Among the measures referenced in the 30-second ad are masks. Biden says, “It’s a simple measure, everyone needs to wear a mask in public,” while the words “Nationwide mask mandates” appear on the screen, implying that if elected, Biden would aim to mandate mask wearing across the nation.
That raises a perennial question of this campaign season — Can the President mandate that people around the country wear masks?
Facts First: There appears to be no legal authority that would allow a US president to enact a nationwide mask mandate. There are exceptions where the executive’s authority could allow for such a mandate, such as on federal property, though a nationwide rule would almost certainly be challenged in court.
Despite the impression left by the graphic in the ad that says ‘nationwide mask mandates,’ Biden’s past comments on the subject suggest he’d take a narrower approach than attempting a nationwide mask mandate.
When asked to clarify what his plan for a mask mandate would entail, the campaign pointed to Biden’s remarks on October 23 where he said, “First, I’ll go to every governor and urge them to mandate mask-wearing in their states. And if they refuse, I’ll go to the mayors and county executives and get local masking requirements in place nationwide.”
Biden added, “As president, I’ll mandate mask wearing in all federal buildings and all interstate transportation because masks save lives. Period.”
The PHSA statute specifies that the regulations are to prevent interstate spread or foreign transmission of disease. Josh Blackman, a South Texas College of Law professor who specializes in constitutional law, said the statute would have to be read very broadly to give the President the authority to require, for example, people to wear a mask while walking outside or traveling on an interstate highway within the confines of their state.
“I don’t think that the statute can be read broadly enough to apply to all people merely moving on an interstate highway,” Blackman said. “Once you go beyond people in federal facilities, you’re really intruding on what the state’s responsible for.”
However, Blackman cautions that a congressional mandate could be subject to constitutional review, citing the precedent of Obamacare.
“Even if Congress enacted a statute that said everyone must wear a mask, I don’t think that statute would be constitutional. I don’t think Congress has the power to force people to wear masks, anywhere, at any point in time,” Blackman said. “We have the Obamacare case from a couple years ago, that case held that people can’t be forced to buy insurance. And I think in a similar world, people can’t be forced to put a mask on their face by the federal government. States can but not the federal government.”