By: Andrew Koh
After declaring what public policy option the United States should go towards to further prevent the transmission of Covid-19, the decision to issue a federal mandate to wear protective face masks became clear after considering “Congress’ enumerated powers provided by the Constitution and how applicable the Spending Clause was to help issue an incentive for states to participate and enact the mask mandate to be rewarded by receiving federal funding” (Shen, 2020). The following considers all of the actions and factors needed to take place in order for this act of public policy to be successful for the health, safety, and protection of our citizens.
Before discussing aspects of the Spending Clause and how we would enforce the mask mandate, a crucial, psychological action must take place in order to reach out to the American citizens who remain unconvinced and skeptical of the scientific research and empirical data which supports the CDC and WHO’s guidance to wear face masks as protection from Covid-19. Much of this skepticism and distrust comes from a partisan worldview that focuses in on the rights and civil liberties of the First Amendment.
Due to the Trump administration’s response to the pandemic through his lack of respect towards the guidance provided by the CDC and WHO, many citizens who lean conservatively agreed with the president’s motives to rarely wear a mask in public, publicly delegitimize and threaten to remove U.S. funding to the WHO, and to inevitably refer to his team of scientific advisors including Dr. Anthony Fauci as, “these idiots” (Stolberg et al., 2020).
The first action needed is to create a marketing plan or way to respectfully and empathetically communicate the reasons why wearing a mask is so important for public safety and to ensure the idea that we are all in this together and that the American policy makers and public health officials who declared this federal mandate are working together for their best interest. “By better understanding the psychology that is motivating compliance with the recommendations of public-health experts, we can improve our messaging and education outreach efforts to hopefully see more universal compliance with mask usage” (Vargas & Sanchez, 2020). Congress must consider this strategy due to the fact that “the emphasis on mandatory masking has come with a growing recognition that education alone has proven insufficient and the lack of enforcement has empowered a minority of citizens to protest mask requirements in businesses, sometimes with violence” (Gee & Gupta, 2020).
Secondly, we must ensure that we offer the American public as much accessibility in obtaining free face masks and encourage a sense of normalcy within the culture about wearing masks. In addition, we must be sure that we have enough PPE and masks for the general public, medical professionals, and people working on the front line trying to treat patients suffering from Covid-19. While “face masks intended for nonmedical or public use generally are not subject to FDA oversight,” there is a need to consider the FDA as the regulatory body in ensuring we have enough PPE and masks for essential personnel and that we do not suffer from a potential shortage due to this federal mandate” (Dabrowska & Green, 2020).
“Until recently, the FDA’s ability to monitor potential device shortages was limited, at least compared to drugs. The CARES Act expanded the FDA’s authority to address shortages of PPE and other medical devices as the law specifically requires manufacturers of certain devices—those that are critical during a public health emergency—to report to FDA interruptions and discontinuances in manufacturing. It also explicitly authorizes the FDA to take certain actions to mitigate shortages and requires FDA to make public a list of devices that are in shortage, which the agency did for the first time on August 14, 2020, specific to devices in shortage during the COVID-19 public health emergency. Congress should consider expanding reporting requirements in future legislation to include requiring manufacturers of medical devices to report to FDA actual or forecasted increases in demand that may lead to a shortage or actions taken by other regulatory authorities that could affect U.S supply” (Dabrowska & Green, 2020).
Regarding the enforcement of this federal mandate onto the states, “a well-crafted use of federal spending powers would likely be constitutional. Congress could attach conditions on the receipt of federal funds, inducing states to adopt a mandate. Intoxicated driver laws offer an analogy. The Supreme Court upheld a federal law conditioning 5% of highway funds on states adopting a 21-year-old drinking age in the case of South Dakota vs Dole. The court probably would similarly uphold a federal law designating a reasonable portion of Covid-19 emergency funding on the condition that states issue mask directives. It is possible, however, that some states would reject a mask mandate, thus doubly jeopardizing their residents’ health—no funding and no mask mandate” (Gostin et al., 2020).
Lastly, Congress must also put into consideration the enforcement of fines or tickets and how “any enforcement policy must embrace a health equity lens, which is essential to new public safety models for mask wearing. Among major municipalities that have been enforcing masks, the use of police has raised questions of how equitably such mandates are being implemented” (Gee & Gupta, 2020). This consideration must be paid with extremely close attention due to the ongoing national conversation happening in regards to the discussions of just policing, systemic racial inequality regarding the processes of law enforcement, and discussions of police reform.
Dabrowska, A. and Green, V., 2020. Personal Protective Equipment (PPE) And COVID-19: FDA Regulation And Related Activities. [online] Crsreports.congress.gov. Available at: <https://crsreports.congress.gov/product/pdf/IF/IF11488> [Accessed 20 October 2020].
Gee, R. E., &; Gupta, V. (2020, October 05). Mask Mandates: A Public Health Framework For Enforcement. Retrieved October 20, 2020, from https://www.healthaffairs.org/do/10.1377/hblog20201002.655610/full/
Gostin, L. O., JD, Cohen, I., JD, &; Koplan, J. P., MD. (2020, September 01). Universal Masking in the United States: The Role of Mandates, Health Education, and the CDC. Retrieved October 20, 2020, from https://jamanetwork.com/journals/jama/fullarticle/2769440
Shen, W., 2020. Could The President Or Congress Enact A Nationwide Mask Mandate?. [online] Crsreports.congress.gov. Available at: <https://crsreports.congress.gov/product/pdf/LSB/LSB10530> [Accessed 20 October 2020].
Stolberg, S., Haberman, M., &; Weiland, N. (2020, October 19). Trump Calls Fauci ‘a Disaster’ and Shrugs Off Virus as Infections Soar. Retrieved October 20, 2020, from https://www.nytimes.com/2020/10/19/us/politics/trump-fauci-covid.html
Vargas, E., &; Sanchez, G. (2020, August 31). American individualism is an obstacle to wider mask wearing in the US. Retrieved October 20, 2020, from https://www.brookings.edu/blog/up-front/2020/08/31/american-individualism-is-an-obstacle-to-wider-mask-wearing-in-the-us/