Could the President or Congress Enact a Nationwide Mask Mandate?

Legal Sidebari
Could the President or Congress Enact a
Nationwide Mask Mandate?
August 6, 2020
As Coronavirus Disease 2019 (COVID-19) cases continue to rise in the United States, the Centers for
Disease Control and Prevention (CDC) has cal ed on Americans to wear non-medical cloth face masks in
public settings and when social distancing measures are difficult to maintain. According to the CDC, the
latest available case studies show that face masks—particularly when used universal y within a
community setting—can slow the spread of COVID-19. In response to the latest case surges, a growing
number of states and localities have instituted jurisdiction-wide mandates requiring the use of face masks
under specified circumstances. At the same time, mask wearing remains largely voluntary in many states.
Recently, Georgia’s governor suspended broader mask mandates instituted by at least 15 localities across
that state, limiting the requirement instead to certain discrete circumstances (e.g., to workers of certain
personal care businesses while providing services to patrons). Amidst these varied approaches, several
public officials have begun to cal for a federal nationwide mask mandate to stem the tide of COVID-19
cases. This Sidebar provides an overview of the relevant federal authority to issue such a mandate, as wel
as other legal considerations for Congress. (Federal authority to mandate mask wearing in more limited
settings, such as within certain federal properties, is beyond the scope of this piece).
Executive Branch Authority to Mandate the Wearing of Face Masks
There are no existing federal laws that explicitly address mask wearing for public health purposes, but
certain existing authorities could potential y form the basis for such executive action. One such law could
be section 361 of the Public Health Service Act (PHSA). That provision, which has been characterized as
“broad [and] flexible,” grants the Secretary of Health and Human Services—delegated in part to the
CDC—the authority to make and 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.” A broad construction of this authority may permit
the CDC to issue regulations mandating the use of masks in circumstances that would prevent the foreign
or interstate transmission of COVID-19. CDC’s exercise of this authority would nevertheless be restricted
by the Constitution and other general y applicable statutory requirements, such as the Administrative
Procedure Act or the Religious Freedom Restoration Act of 1993. The latter statute requires courts to
grant certain religious exemptions from a general y applicable rule that imposes a substantial burden on a
regulated person’s religious exercise.
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On the other hand, the structure and language of section 361 may subject it to a narrower construction.
Following the broad statement of authority identified above, section 361 provides that “[f]or purposes of
carrying and enforcing such regulations,” the agency “may provide for such inspection, fumigation,
disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or
contaminated as to be sources of dangerous infection to human beings, and other measures, as in [its]
judgment may be necessary.” The remaining subsections of section 361 further contemplate the issuance
of regulations related to the apprehension, detention, examination, and conditional release of individuals
for purposes of preventing the spread of communicable diseases. Given this structure and language,
regulations issued pursuant to this authority have primarily been confined to two general types of control
measures: (1) quarantine and isolation measures of people and goods (administered by the CDC) and
(2) measures that control or treat areas, animals, or articles that are susceptible or subject to contamination
or infection (administered by the U.S. Food and Drug Administration (FDA)). This limited construction
may be consistent with a canon of statutory interpretation that confines the meaning of a general term
(e.g., “other measures” deemed necessary by the agency) to matters comparable to the more specific
terms enumerated in the statute. Further complicating the analysis is the evolving political dimension of
the mask mandate debate. In assessing an agency’s statutory authority, the Supreme Court has cautioned
that courts must “be guided to a degree by common sense as to the manner in which Congress is likely to
delegate a policy decision of [significant] economic and political magnitude to an administrative agency.”
In light of these considerations, it is therefore difficult to predict whether courts would conclude that the
CDC’s authority under section 361 would extend to the nationwide mandating of face masks.
Congress’s Authority to Mandate the Wearing of Face Masks
Congress’s authority to act legislatively on this subject derives from its enumerated powers in the
Constitution. In this context, the Spending Clause and the Commerce Clause of the Constitution are two
potential sources of such authority.
The Spending Clause empowers Congress to tax and spend for the general welfare. Under this authority,
Congress may offer federal funds to nonfederal entities and prescribe the terms and conditions under
which the funds are accepted and used by recipients. This power is general y expansive, but funding
conditions when applied to the states are subject to certain limitations. Applying this authority in the
context of a mask mandate, Congress could incentivize states to enact a mask mandate meeting certain
federal requirements by imposing it as a condition of receiving certain federal funds. This use of the
Spending Clause authority, assuming it fal s within the broad parameters of being for the “general
welfare,” would be permissible so long as (1) Congress provides clear notice of the mask mandate that
states must enact; (2) the mandate is related to the purpose of the federal funds; (3) this conditional grant
of funds is not otherwise barred by the Constitution; and (4) the amount of federal funds offered is not “so
coercive as to pass the point at which pressure turns into compulsion.”
The Commerce Clause grants Congress the power “[t]o regulate Commerce with foreign Nations, and
among the several States, and with the Indian Tribes.” This authority empowers Congress to regulate
“three broad categories of activities”: (1) “channels of interstate commerce,” like roads and canals;
(2) “persons or things in interstate commerce,” and (3) activities that substantial y affect interstate
commerce. While Congress’s authority under the Commerce Clause is expansive, a majority of the
Supreme Court in National Federation of Independent Business (NFIB) v. Sebelius agreed that there
exists a discrete limit to this authority—that Congress cannot compel individuals to engage in commercial
activity. According to Chief Justice Roberts, in a portion of the opinion not joined by other justices but
largely echoed by the view of the four dissenting justices, the Commerce Clause does not empower
Congress “to regulate individuals precisely because they are doing nothing.” While it is uncertain whether
this conclusion constitutes binding precedent, it suggests that a broad mandate (e.g., one that general y
requires individuals to wear masks) may be particularly susceptible to chal enge because such a mandate

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could be construed as compel ing individuals who are “doing nothing” to engage in an activity—mask
wearing—that is not even a commercial activity. On the other hand, a federal mandate that requires mask
wearing as a condition to engage in existing economic activities, such as employment or patronage of
certain businesses, may raise less serious constitutional concerns.
In addition to the limits that inhere in these authorities, Congress’s exercise of these authorities is also
subject to certain external constraints. In the context of public health regulations, the key constraints are
those grounded in federalism and the protection of individual rights. Pursuant to the principles of
federalism, the Supreme Court has interpreted the Tenth Amendment to prevent the federal government
from commandeering or requiring state officers to carry out federal directives. This principle thus
prevents Congress from requiring states or localities to mandate masks. It does not, however, impede
Congress from using its Spending Clause authority to incentivize states to do so, as long as the amount
offered is not so significant as to effectively coerce, or functional y commandeer, states into enacting the
mandate.
In terms of protection of individual rights, there may be a few external constraints on Congress’s ability to
impose a mask mandate. In a recent order denying a church’s request to enjoin, pending appeal, the
enforcement of an Executive Order in California that, among other things, restricts public gatherings
including at places of worship, Chief Justice Roberts observed that such public health decisions during a
pandemic are primarily entrusted to political y accountable officials. The Chief Justice cautioned that
those decisions, undertaken “in areas fraught with medical and scientific uncertainties,” are subject to
only “broad limits” and “should not be subject to second-guessing by an unelected federal judiciary,
which lacks the background, competence, and expertise to assess public health and is not accountable to
the people.” As a consequence, any chal enge to a mask mandate may have to overcome general judicial
hesitation to invalidate a public health regulation during the midst of a pandemic.
Nevertheless, as more states began to implement mask mandates, some have chal enged the mandates as
exceeding various provisions of the bil of rights. Chal engers have, for instance, argued that the act of
mask wearing is an expressive conduct that implicates the First Amendment right to freedom of speech
and the right against compel ed speech. In a recent case chal enging Maryland’s face covering
requirement, certain veteran plaintiffs argued that face covering is an expressive conduct that conveys a
“sign of capture on the battlefield, and subservience to the captor.” In rejecting this argument, the court
concluded that “especial y in the context of COVID-19”—which the court observed is an ongoing public
health crisis “more severe than any seen for a hundred years”—“wearing a face covering would be
viewed as a means of preventing the spread of COVID-19, not as expressing any message.” In general,
courts faced with chal enges of state COVID-19-related mandates (such as restrictions on gatherings)
based on the First Amendment’s Free Exercise Clause have also concluded that this constitutional concern
is mitigated under Employment Division, Department of Human Resources of Oregon v. Smith and its
progeny. In Smith, the Court held that neutral, general y applicable laws (i.e., ones that do not target
specific religious groups)—which would include a general mask mandate—are subject to limited scrutiny
under the Constitution.
Other Legal Consideration for Congress
In considering the choices among available authorities, Congress may wish to consider certain unique
enforcement chal enges posed by a direct federal mask mandate. In general, enforcing mask mandates has
been a chal enge even for states, which can leverage their state and local law enforcement apparatus to
enforce such mandates (typical y through ticketing and fines). This general enforcement apparatus,
however, is not available to the federal government, which lacks states’ general police power and, as
discussed above, cannot commandeer state officers to carry out federal directives, risking enforcement
gaps in the context of federal public health regulations. For instance, even though section 361 of the
PHSA empowers the CDC to issue quarantine and isolation orders to prevent the spread of communicable

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disease, the CDC—as a public health agency—has no law enforcement apparatus to independently
enforce such orders. Section 365 directs customs officers (e.g., U.S. Customs and Border Protection
(CBP) officers) and U.S. Coast Guard (USCG) officers to aid in the enforcement of quarantine and
isolation rules and regulations. In practice, however, under the cooperative Memorandum of
Understanding between HHS and the Department of Homeland Security that implements section 365,
CBP and USCG’s role is limited to providing enforcement support only at ports of entry (i.e., when
screening passengers arriving from foreign countries), and primarily when transporting a person to a
medical facility. As a result, this authority is historical y rarely invoked. The CDC in fact asserted its
quarantine authority—which restricts the movement of individuals exposed to a contagious disease—in
the context of COVID-19 for the first time in 50 years. In the handful of times the CDC has invoked its
isolation authority—which separates an infected individual from those uninfected—it has typical y
rescinded its federal isolation order after the first 72 hours of detention once a local public health
authority has agreed to accept custody of the patient. This landscape means that, depending on the scope
of a direct federal mask mandate, there may not be an existing federal mechanism suitable to enforce it.

Author Information

Wen S. Shen

Legislative Attorney




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