We previously discussed President-elect Joe Biden’s claim that he would impose a nationwide mask mandate. While most of what Biden had promised as part of his pandemic plan (like free vaccinations) is already part of the federal plan, Biden’s insistence that he would impose a nationwide mask mandate was a campaign distinction. The promise has been questioned by some of us regarding the federal agency to enforce such a mandate. Now Biden is emphasizing the mandate in his transition and his new chief of staff, Ron Klain, appeared to have achieved considerable qualifications in an interview with MSNBC’s Lawrence O’Donnell last night. Klain is now making it clear that the Biden administration would only fulfill its promise of a national mandate “where the federal authority extends”. He then added that they were simply “pushing” states to follow suit. That sounds again like what the CDC is currently doing and what is already required in federal buildings, enclaves, installations and bases. An urging from the president is a substantial downgrade of a federal mandate. Legally, it’s like going from a promise to shoot the moon to a promise to visit the local planetarium.
In the interview, Klain says that Biden has promised that I will publish a nationwide edition on “his first day in office Masking Mandate that requires people to carry Masks where the federal agency expanded and then calling on the governors and other local officials to impose mask Mandates in their states. “
He didn’t quite promise that. It was not a national “push” but a mandate. Biden initially recognized the question of such authority, but then announced that he had been told by his lawyers that he was empowered to give a nationwide mandate. These changed positions were hit by the Trump campaign.
Biden campaigned for the assurance that he would be able to enforce the national mandate. Now, after the election, he seems to acknowledge that he has no such authority.
Just as I was criticizing President Donald Trump for exaggerating his authority in the pandemic, I questioned Biden’s claims that he could impose the national mask mandate. There is no law expressly granting him that authority as president. We discussed Section 361 of the Public Health Act (PHSA), but that law gives the Minister of Health and Human Services (and CDC designated subordinates) the power to make and enforce any regulations necessary to do so the introduction, transmission, or spread of communicable diseases from overseas into states or possessions, or from one state or possession to another state or possession. “
A national mandate would bring this language to the brink of crisis. This would turn the importance of interstate border management into a comprehensive right to regulate the domestic behavior of citizens. Even if the law could be construed to have such a meaning, it would raise the same federalism problems that we discussed earlier.
Now Klain seems to be suggesting that Biden would only order the wearing of masks in federal buildings and enclaves. The CDC already requires this in federal buildings with such signs. The Biden administration could change it to “REALLY VOTE MASKS” but the mandate for federal buildings is already in place. Likewise, 34 states already prescribe masks. Some are not. It is not clear how this “urge” for the 16 remaining states differs dramatically from what the Trump administration has stated. He may view the past calls as “nudge” rather than “urge,” but the difference is hard to tell. It is clear that Biden did not want to pursue a national urgency policy.