By: Andrew Koh
The Covid-19 pandemic has been a relentless and catastrophic assault to domestic and global healthcare. Its stranglehold on all aspects of American life, freedoms, politics, education, societal behaviors, economy, and public policy has been debilitating as the pandemic has affected the lives of millions across the country and the world.
In an effort to examine possible public policy options available to encourage action, this report utilizes the findings and data of the scientific and healthcare community to establish and support the claim of needing a federally mandated order on the wearing of protective face masks to stop the spread of Covid-19 as well as providing legislative solutions for policymakers to consider by way of Congress’ enumerated powers and Spending Clause in addressing the need to incentivize empathetic public policy to bridge across a divided nation and encourage citizens to participate in the name of social responsibility and the nation’s general welfare.
A Desperate Need for Action
As we currently face over 11.6 million confirmed cases and over 250,000 deaths in the United States, with a 77% increase in cases within the past 14 days according to the New York Times (2020), the lack of urgency and sheer neglect of any federal Covid-19 guidance or action from the Trump administration and policymakers following the results of the 2020 U.S. General Election, has prevented any possibility of containing the virus.
The situation has also been exacerbated by making the wearing of preventative face masks and the citizen’s participation of the CDC and WHO guidelines a political issue in a time where the partisan divide of American politics has created a deeply stark chasm against its citizens and their wellbeing like never before as “61 percent of Republicans believe that the worst of Covid-19 is behind us compared to the 76 percent of Democrats who believe the worst is yet to come,” according to a Pew Research study (2020).
The Science Is Clear as Crystal
The politicization of the wearing of protective face masks has stoked the fires of intense debates addressing the need to protect fellow citizens and communities through the basis of the social and moral responsibility of wearing masks versus the alleged infringement of one’s personal freedom and civil liberties.
The ineptitude and inaction of the Trump administration through its devoted Republican allegiance has been detrimental to the nation’s health in convincing GOP supporters that there is zero legitimacy to the assertions and guidance made by the scientific and healthcare communities, including the CDC and WHO, suggesting face masks prevent the spread of Covid-19. However, the data proves otherwise:
- “Aerosols and droplets generated by talking have been linked with the transmission of Covid-19” (New England Journal of Medicine, 2020).
- “Hundreds of droplets were generated when saying a simple phrase, but nearly all these droplets were blocked when the mouth was covered by a damp washcloth” (Bai, 2020).
- “Mask mandates led to a slowdown in daily Covid-19 growth rate with estimates suggesting that as a result, more than 200,000 Covid-19 cases were averted” (Lyu et al., 2020).
- Requiring face mask use in public could help mitigate the spread of Covid-19 (Lyu et al., 2020).
Public Policy Options Available
As of November 19, 2020, “thirty-six states including Washington DC and Puerto Rico have implemented the requirement of wearing protective face masks in public statewide” (Hauck & Woodyard, 2020).
The executive and legislative options available for policymakers can no longer ignore the evidence supporting the CDC and WHO guidelines, the data supporting the use of face masks to block the transmission of droplets from person to person, and the studies supporting the states who had implemented mask mandates. Lawmakers must consider the optimum solution of a national mask mandate if they seriously want to stop the proverbial bleeding and transition into actual signs of progress in the containment and prevention of more Covid-19 cases.
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.” Enacting Section 361 of the Public Health Service Act (PHSA), would grant the Secretary of Health and Human Services—in part to the CDC—the ability to 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).
While this public policy option could be useful to provide the CDC with the power to “institute regulations requiring the use of masks in circumstances that would prevent the foreign or domestic transmission of COVID-19,” it would be likely that this executive 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).
The Ideal Legislative Decision: The Spending Clause
Congress on the other hand offers an option that would best support a federal mask mandate in the name of convincing the states to participate. According to the Congressional Research Service (2020), by invoking the Spending Clause, “Congress would have the ability to tax and spend for the general welfare.”
Congress’ use of its enumerated powers would have “the authority to offer federal funds to nonfederal entities and prescribe the terms and conditions under which the funds are accepted and used by recipients” (Shen, 2020). This public policy would act as an incentive for states to enact a mask mandate meeting certain federal requirements by imposing it as a condition of receiving certain federal funds 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).
Enforcement, Dialogue, & Empathy
This decision of using Congress’ Spending Clause would allow for the enforcement of a federal mask mandate to come through issuing fines and tickets to noncompliant citizens. Additionally, utilizing secondary reframing and cycling would motivate and encourage states to change conflicting values from the debate of social responsibility and safety versus civil liberties into a monetary value that prioritizes federal funds for the state’s discretion, perhaps utilizing the federal funding for state health departments, healthcare facilities, etc.
Ultimately, as time progresses with the lack of substantial action taken by policymakers, a comprehensive and empathetic dialogue beyond political party lines must take place no matter what public policy action is taken to solve the problems of the pandemic if the federal government wants to see Americans come together and participate with the CDC and WHO guidelines.
As “82 percent of registered voters say they would support a federally mandated order to require the wearing of face masks,” according to a Hill-HarrisX poll (2020), the need to effectively communicate and instill understanding and empathy from the viewpoint of the remaining 18 percent is crucial to ensuring the effectiveness of the public policy and properly analyzing the mask mandate’s effect on limiting Covid-19 cases. While allowing the healthcare industry and medical personnel working on the front lines the best chance to treat those in critical condition from the virus and not have their systems overrun and overwhelmed with an influx of Covid-19 cases and deaths we are seeing currently.
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Hauck, G., & Woodyard, C. (2020, November 18). COVID-19 infections are soaring. Lockdowns could be coming. A list of restrictions in your state. Retrieved November 19, 2020, from https://www.usatoday.com/story/news/nation/2020/11/13/covid-restrictions-state-list-orders-lockdowns/3761230001/
Lyu, W., Wehby, G. L., NW, F., K, M., ES, R., Al., E., . . . LH, S. (2020, June 16). Community Use Of Face Masks And COVID-19: Evidence From A Natural Experiment Of State Mandates In The US. Retrieved October 21, 2020, from https://www.healthaffairs.org/doi/10.1377/hlthaff.2020.00818
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The New York Times. (2020, January 28). Covid World Map: Tracking the Global Outbreak. Retrieved October 19, 2020, from https://www.nytimes.com/interactive/2020/world/coronavirus-maps.html
Pew Research Center. (2020, August 28). Republicans, Democrats Move Even Further Apart in Coronavirus Concerns. Retrieved October 20, 2020, from https://www.pewresearch.org/politics/2020/06/25/republicans-democrats-move-even-further-apart-in-coronavirus-concerns/
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].
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