By: Andrew Koh
As the scientific evidence behind wearing protective face masks and mask mandates grows stronger, the sharp partisan divide between being for or against the CDC and WHO’s guidelines has primarily boiled down to one’s definitions of protecting the community during this Covid-19 pandemic versus the right to protect one’s personal freedoms against mandates that could infringe upon civil liberties. “As of July 27, 2020, statewide orders mandating face coverings in response to Covid-19 have been issued in 31 states and the District of Columbia with mandates varying from directives to the general public, specific types of businesses, and to employers, employees, or both” (Gostin et al., 2020). According to a Hill-HarrisX poll (2020), “82 percent of registered voters say they would support a federally mandated order to require the wearing of face masks.” With this in mind, it is important to understand all of the perspectives and options the executive and legislative branch have to consider before taking such public policy into action.
Executive Level Options
According to the Congressional Research Service (2020), “there are currently no existing federal laws that explicitly address mask wearing for public health purposes, but certain existing authorities could potentially form the basis for such executive action.” Specifically regarding “section 361 of the Public Health Service Act (PHSA), as this provision would grant the Secretary of Health and Human Services—delegated in part to the CDC—the authority to make and enforce regulations necessary “to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession.” (Shen, 2020).
This public policy option could be used to provide the CDC with the authority to “institute regulations requiring the use of masks in circumstances that would prevent the foreign or domestic transmission of COVID-19” (Shen, 2020). However, it would be likely that this public policy option would be shut down “due to the Constitution and other requirements like the Religious Freedom Restoration Act of 1993, which requires courts to grant certain religious exemptions from a generally applicable rule that imposes a substantial burden on a regulated person’s religious exercise” (Shen, 2020).
It is worth noting that the FDA has already implemented public policy in the “guidance of providing the expansion and availability of the general use of face masks for the duration of the pandemic” through the Public Health Service Act, however, it explicitly states “guidance” and not the explicit use of face masks to be made mandatory (FDA, 2020).
Legislative Level Options
In terms of the the options available to Congress, “it is able to look toward the enumerated powers as provided by the Constitution” (Shen, 2020). One option available is “the Spending Clause which empowers Congress to tax and spend for the general welfare” (Shen, 2020). Through this option, Congress would be allowed to provide “federal funds to nonfederal entities and prescribe the terms and conditions under which the funds are accepted and used by recipients” (Shen, 2020). “The Spending Clause would incentivize states to enact a mask mandate meeting certain federal requirements by imposing it as a condition of receiving certain federal funds” (Shen, 2020).
This could be a legitimate option as long as “Congress provides clear notice of the mask mandate that states must enact, the mandate is related to the purpose of the federal funds, this conditional grant of funds is not otherwise barred by the Constitution, and the amount of federal funds offered is not “so coercive as to pass the point at which pressure turns into compulsion” (Shen, 2020).
Another option Congress has at its disposal is “the Commerce Clause which grants the power to regulate channels of interstate commerce, persons or things in interstate commerce, and activities that substantially affect interstate commerce” (Shen, 2020). However, this option could be limited or thwarted due to a Supreme Court ruling in National Federation of Independent Business (NFIB) v. Sebelius which states that “Congress cannot compel individuals to engage in commercial activity and that the Commerce Clause does not empower Congress “to regulate individuals precisely because they are doing nothing” (Shen, 2020). In essence, Congress would not have the public policy power to mandate the wearing of face masks to individuals “who are doing nothing as mask wearing is not a commercial activity” (Shen, 2020).
Motivating the Public
Ultimately, no matter what options are on the table for the executive or legislative branch in implementing the mandatory wearing of face masks, the greater obstacle revolves around the culture and argument of one’s First Amendment rights. Considering the severe magnitude of the Covid-19 pandemic and the incredible number of confirmed domestic and international cases and deaths, there needs to be a greater conversation of the empathy and psychological understanding to motivate the public to comply with wearing face masks.
Similar to the phenomenon of the condom’s implementation for safe sex, Dr. Michelle Ybarra, the president and research director of the Center for Innovative Public Health Research equates the dilemma of the protective face masks as the need for public policy to “elicit the messages from the population you’re trying to educate, to listen carefully, and learn what the cultural barriers may be, and to hear from the people who are choosing to wear masks. And it helps to contextualize risk, to offer data and to send the message, “We are all in this together, we are all at risk” (Klass, 2020).
Center for Devices and Radiological Health. (2020, May 26). Face Mask and Respirator Enforcement Policy During COVID-19 – Guidance. Retrieved October 20, 2020, from https://www.fda.gov/regulatory-information/search-fda-guidance-documents/enforcement-policy-face-masks-and-respirators-during-coronavirus-disease-covid-19-public-health
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
Klass, P. (2020, July 21). To Get People to Wear Masks, Look to Seatbelts, Helmets and Condoms. Retrieved October 20, 2020, from https://www.nytimes.com/2020/07/21/well/family/masks-condoms-seatbelts-helmets.html
Schulte, G. (2020, August 03). Poll: 82 percent of voters support a national face mask mandate. Retrieved October 20, 2020, from https://thehill.com/hilltv/what-americas-thinking/510317-poll-82-percent-of-voters-support-a-national-mask-mandate
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].