Why Biden and Congress can mandate masks if governors refuse to act

 This column originally appeared in The Hill.

With a rising number of infections from the Delta variant across the country, in states such as Florida and Texas where governors have refused to act to protect their populations, can President Biden and the federal government mandate masks or take other actions? The traditional answer from constitutional lawyers is no, and the Supreme Court under Chief Justice John Roberts has made federal action more difficult. But there is one legal option: declare the coronavirus an interference with interstate commerce, allowing the federal government to act.

 

The United States is a country of divided authority between states and the national government.  In many areas, states have far more power than the federal government. “Police power” is the authority to act to protect the health, safety, welfare and morals of the people, the basis of state power to pass criminal laws, housing codes, environmental laws, and even public health measures. Over time, the Supreme Court has upheld broad, inherent authority of states to promote public health, including recent mandatory quarantines and vaccination laws.

 

The United States government lacks police power. Its powers are limited to the text of the Constitution or what is necessary and proper to execute its explicit powers. Without police power, the national government has significantly less authority over many aspects of our lives.  However, Congress has used Article I, Section 8, Clause 3 of the Constitution — the Commerce Clause — to regulate measures that affect interstate commerce. It also has used Article I, Section 8, Clause 1 — the authority to tax and spend for the general welfare — as a tool to induce parties to act under threat of a financial penalty.

 

There is a long Supreme Court history surrounding Congress’s use of the Commerce and Tax clauses as tools of regulation. Yet the simple answer is that, together, they have allowed the national government to prescribe criminal and environmental laws, as well as workplace conditions, and to regulate the sale and distribution of drugs and food products. In upholding the constitutionality of the 1964 Civil Rights Act, for example, the court ruled that decisions by businesses to refuse to serve people of color interfered with interstate commerce. Together, these two clauses have given the national government broad power to act.

 

Yet, these clauses have limits. The Supreme Court has said that, generally, the national government cannot order or, in its words, “commandeer” states to act because of Tenth Amendment or federalism concerns. It cannot tell states directly to lower highway speed limits, for example, or to raise age limits for the consumption of alcohol, or lower blood-alcohol levels for determining when someone is driving while intoxicated. It can, however, offer financial inducements to encourage states to do all this — if the incentives are not coercive.

 

What all this means is that the president and federal government historically have lacked broad public health authority to act and to tell states they must do the same. The Supreme Court compounded this problem in 2012 when it ruled in National Federation of Independent Business v. Sebelius on the constitutionality of the Affordable Care Act. The court decided that Congress lacked authority under the Commerce Clause to mandate individuals to carry health insurance, because not being insured did not interfere with interstate commerce. 

 

The court did uphold the individual insurance mandate under the Tax Clause by arguing that individuals were free to not get insurance, but they then would have to face a tax. The court struck down the part of ObamaCare encouraging states to expand Medicaid eligibility, ruling that the combination of incentives and threats were coercive and violated the Tenth Amendment.

 

Americans should rue this decision. It hampered the expansion of health care coverage and now crimps the ability of the national government to respond to the coronavirus pandemic. Roberts Court conservatives have clipped the wings of governors in California and New York to restrict gatherings at religious institutions, arguing it violates the Free Exercise of Religion. This is a court simply out of touch with realities associated with the coronavirus and the need for strict public health measures. The court’s decisions enable irresponsible behavior by governors who refuse to act during a public health crisis.

 

However, it is indisputable that the pandemic has wrought significant impact on the U.S. economy. We have nearly 18 months of proof that the pandemic impacts interstate commerce. Decisions to not wear masks or get vaccinated can impact interstate commerce, just as much as the decision of a business not to serve people of color was the basis for upholding civil rights laws because those decisions impacted interstate commerce.

 

Not wearing a mask or getting a vaccine arguably affects others more than not getting insurance, and therefore it affects interstate commerce. Given the reality of how COVID-19 is impacting interstate commerce, President Biden and Congress have a good-faith argument that they have the authority to step in and act if governors choose not to.