striker42
Well-known member
I really am interested to see how Biden thinks he can implement a national mask mandate his first day in office.
Some legal background. The power to regulate the health, safety, welfare, and morals (yes morals) of a community are collectively known as "police powers." It has long been established that the federal government does not have police powers. The constitution created a federal government of enumerated powers so any power exercised by any branch of the federal government must have an origin in the constitution. The constitution reserved all powers not enumerated to the states. Since the constitution doesn't grant police powers to the federal government, they are reserved to the states.
So, regulation of health is the first on the list of the police powers. So the power to regulate public health has been reserved to the states. The federal government would need to find another way. Here are some options as I see them.
1- Congress passes a law requiring a face mask when determined by the executive branch that one is required. I could conceivably see this as an option as it could be said to be part of the regulation of interstate commerce. Pandemics have a very large impact on interstate commerce so requiring face masks to control the spread of a pandemic could be required. Litigation would naturally follow. Also, this wouldn't be something that could be done on day 1 as Biden promised.
2- Biden tries to tie up some kind of funding if a state doesn't have a mask mandate. This is also tricky. The president's authority to tie up funds allocated by congress is limited and the funds the president does have discretion over probably wouldn't be enough to be a mandate. Even if the president did have authority to stop funds, usually the requirement placed on a state to get the funds has to be related to the funds themselves and can't be coercive. The federal government cannot regulate the states as states and coercing them into acting is doing this.
3- Biden's mandate is more symbolic than effectual. I think this is the most likely. He might include what things he can to encourage states to enact mandates but the executive order would be unlikely to actually move the needle at all. It would fulfill the campaign promise while not actually doing much.
Some legal background. The power to regulate the health, safety, welfare, and morals (yes morals) of a community are collectively known as "police powers." It has long been established that the federal government does not have police powers. The constitution created a federal government of enumerated powers so any power exercised by any branch of the federal government must have an origin in the constitution. The constitution reserved all powers not enumerated to the states. Since the constitution doesn't grant police powers to the federal government, they are reserved to the states.
So, regulation of health is the first on the list of the police powers. So the power to regulate public health has been reserved to the states. The federal government would need to find another way. Here are some options as I see them.
1- Congress passes a law requiring a face mask when determined by the executive branch that one is required. I could conceivably see this as an option as it could be said to be part of the regulation of interstate commerce. Pandemics have a very large impact on interstate commerce so requiring face masks to control the spread of a pandemic could be required. Litigation would naturally follow. Also, this wouldn't be something that could be done on day 1 as Biden promised.
2- Biden tries to tie up some kind of funding if a state doesn't have a mask mandate. This is also tricky. The president's authority to tie up funds allocated by congress is limited and the funds the president does have discretion over probably wouldn't be enough to be a mandate. Even if the president did have authority to stop funds, usually the requirement placed on a state to get the funds has to be related to the funds themselves and can't be coercive. The federal government cannot regulate the states as states and coercing them into acting is doing this.
3- Biden's mandate is more symbolic than effectual. I think this is the most likely. He might include what things he can to encourage states to enact mandates but the executive order would be unlikely to actually move the needle at all. It would fulfill the campaign promise while not actually doing much.
