Can the president or Congress declare a nationwide mask mandate? Two Senate Democrats would like to find out.
Sens. Edward Markey of Massachusetts and Richard Blumenthal of Connecticut introduced the “Encouraging Masks for All Act of 2020” on Wednesday, according to Forbes.
The bill would make $5 billion in federal funds, directed through the Public Health and Social Services Emergency Fund, available to the states via grants contingent on their having a program that encourages the wearing of masks in all public spaces.
Lacking only a tortuous name that can be easily turned into an acronym, this is pretty much everything you’d expect from legislation designed to make quick headlines but that isn’t going to pass the Senate as the majority Republican body currently constituted. This includes the usual groan-worthy pro forma statements from Sens. Markey and Blumenthal.
“Masks and face coverings are the essential public health tool to respond to the COVID-19 pandemic,” Markey said in a news release with the ambitious headline: “Senators Markey and Blumenthal Announced National Face Mask Mandate Legislation.”
“As President-elect Biden recognizes, we need to use every technique available to us to encourage mask use, from clear communication of the need for masks, to providing masks to those who need them, to leading by example, and even to mandating mask use nationwide. Our legislation would move us closer to goal of ensuring universal mask adoption during these dangerous winter months. It would also ensure that essential workers in transit, health care, and retail settings all over the country are protected with face masks. Mask up!”
He demands it! With an exclamation point! If I could have formulated a less effective pitch for Americans who are recalcitrant about wearing masks, I don’t think I could have come up with anything more thuddingly terrible than how Markey ended his statement.
Blumenthal, meanwhile, said in the release that “[e]ven with a vaccine, mask wearing is an essential tool in conquering COVID-19, along with physical distancing and other common sense public health steps. This bill gives states the resources to encourage mask wearing in public and outdoors, to provide masks to those who need them, and to enforce mask mandates to protect public health.”
In terms of providing “resources to encourage mask wearing in public and outdoors,” it actually does very little of that, providing $75 million to states to promote mask wearing. What it does is provide $5 billion to states as a very big carrot to adopt mask mandates, no matter what their situation may be. This is of questionable efficacy and constitutionality — and, if Joe Biden takes office on Jan. 20, 2021, it’d be an unpopular bill to throw political capital toward passing.
Beyond the fact that the first major study of mask protection from COVID-19, DANMASK-19, yielded inconclusive results, a nationwide mask mandate still remains a thorny issue with those yet unpersuaded to wear a face covering.
The 15 states Markey and Blumenthal are targeting with their legislation are all generally Republican-leaning (only two, Arizona and Georgia, went for Joe Biden, and those have mask mandates for state employees). They are mostly large and in the South, Midwest or Great Plains. In short, this isn’t a particularly easy area for Washington bureaucrats to make people believe they’re doing everyone a favor by interfering, no matter what the science may be.
The heavy hand of Congress, when decidedly unwelcome, always tends to provoke not just resentment but resistance — particularly when it comes to practically unenforceable edicts like mask mandates.
There are also issues regarding the constitutionality of such measures. Because of the expansive powers given to Congress under the Commerce Clause — which stipulates Congress can “regulate Commerce . . . among the several States” — federal lawmakers could likely mandate or disburse funds based on which states have enacted legislation requiring masks to be worn in places of business. All public places, however, would be a much trickier matter.
The legislation even calls for masks to be made mandatory on federal property. Along with being bad news for California Sen. Dianne Feinstein, who apparently doesn’t like wearing a mask in the halls of Congress, that’s also going to be a thorny legal issue.
And then there’s the ability to get the legislation passed in the first place. If the Republicans win one or both seats in the January Senate runoffs, they have the sheer numbers to vote down the legislation. Even assuming several moderate Republicans voted for it, there’s still the problem of the filibuster.
While Democrats have floated doing away with the practice, which necessitates a 60-vote majority to pass legislation, it seems unlikely a $5 billion grant program designed to force states into adopting mask protocols is going to be where they plant their flag and say they’ll move no more. Such a bill could be included in the federal budget and pass with a 50-vote margin via budget reconciliation, but that’s a long way off.
Nevertheless, it’s a preview of what we’ll likely see from a prospective Biden administration.
On the campaign trail, Biden said he could and would issue a nationwide mask mandate via executive order, stating in September that “[o]ur legal team thinks I can do that, based upon the degree to which there’s a crisis in those states, and how bad things are for the country.”
Whether Biden realized this would be unworkable politically or his legal team suddenly stopped thinking he could do that, Biden’s backed off that kind of language since then, instead focusing on a hard sell of Republican governors and, failing that, mayors and county officials within those states, according to CNN.
That’s about the extent he can get away with right now, no matter what Sens. Markey and Blumenthal might think.
Anything beyond that and things will get ugly — no matter how often we get the senator from Massachusetts imploring us all to “[m]ask up!”
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