Michigan Gov. Gretchen Whitmer Wants President Donald Trump To Impose a Nationwide Face Mask Mandate

Whitmer's argument is short on facts and legal reasoning.

President Donald Trump, who for months has been sending mixed messages about the value of face masks in preventing transmission of the COVID-19 virus, this week unambiguously endorsed that precaution. "Many people say that it is Patriotic to wear a face mask when you can't socially distance," Trump said on Monday in a tweet accompanied by a photo of him wearing a black mask embossed with the presidential seal. "There is nobody more Patriotic than me, your favorite President!"

Trump amplified that message at a press briefing yesterday. "We're asking everybody that when you are not able to socially distance, wear a mask," he said. "Whether you like the mask or not, they have an impact. They'll have an effect. And we need everything we can get."

Michigan Gov. Gretchen Whitmer, writing in The New York Times, argues that the president's new enthusiasm for face masks means he should issue an order requiring all Americans to wear them in indoor public places and outdoors when they are in close proximity to other people. Although that guidance is sensible, there are a few problems with Whitmer's argument for a nationwide mask mandate, including the numbers she cites to support it, the potential for counterproductive defiance, and the lack of a legal basis for such an order.

Given the extent to which mask wearing (like many other aspects of the COVID-19 pandemic) has been politicized, Whitmer is not exactly an ideal bearer of this message. The problem is not just that she is a Democrat but also that the COVID-19 lockdown she imposed in Michigan was notoriously arbitrary. At various points, Whitmer decreed that residents could not travel between their primary residences and their vacation homes in Michigan; that people could use rowboats but not motorboats; that lawn care companies could not operate even if they followed social distancing guidelines; and that big-box retailers deemed essential could not sell nonessential products such as paint and plants.

Whitmer still believes the public health payoff from her lockdown outweighed the social and economic costs it imposed. Yet she undermines that argument in her eagerness to justify a national face mask mandate. "A study conducted by Goldman Sachs concluded that a federal mask mandate could substitute for lockdowns that could cause a 5 percent drop in G.D.P.," she writes. "And if Americans do not mask up in public, cases could rise and we could be forced to close down more of our businesses."

The implication is that virus transmission can be substantially reduced through measures far less onerous than the sweeping business closure and stay-at-home orders that Whitmer and most other governors imposed. The Goldman Sachs study that Whitmer cites makes that case.

Noting the outsized role that "superspreading" has played in the epidemic, the authors argue that restrictions on large public gatherings, combined with wide mask wearing, would curtail new cases while avoiding the disastrous economic impact of lockdowns. While that does not necessarily mean more narrowly targeted measures would be equally effective, the analysis drives home the importance of weighing the marginal benefit from lockdowns against the added costs they entail—something politicians like Whitmer conspicuously failed to do.

The rush to impose sweeping legal restrictions on social and economic activity not only resulted in costs that may not have been justified; it also provoked resentment that made many Americans—especially those who face a negligible risk of dying from  COVID-19 because they are relatively young and healthy—disinclined to comply even with much less burdensome demands. While some weariness with COVID-19 precautions was inevitable, edicts like Whitmer's compounded the problem by drawing distinctions between forbidden and permissible activities that made little or no sense. It is hardly surprising that people would be less receptive to advice about physical distancing and face masks, no matter how sound, when it comes from the same politicians who deprived them of their livelihoods and confined them to their homes.

Whitmer further undermines her credibility by relying on a factoid with no scientific basis. "Wearing a mask has been proven to reduce the chance of spreading Covid-19 by about 70 percent," she writes. Whitmer provides no source for that assertion, which is not surprising. As Kaiser Health News and PolitiFact noted earlier this month, the claim is featured in "a popular social media post that's been circulating on Instagram and Facebook since April." But infectious disease experts, one of whom called the number "bonkers," were mystified as to where it came from.

Kaiser Health News and PolitiFact asked the Centers for Disease Control and Prevention (CDC) about the figure uncritically touted by Whitmer (and approved by New York Times editors who supposedly are keen to avoid unsubstantiated factual assertions). "We have not seen or compiled data that looks at probabilities like the ones represented in the visual you sent," CDC spokesman Jason McDonald replied. "Data are limited on the effectiveness of cloth face coverings in this respect and come primarily from laboratory studies." He "added that studies are needed to measure how much face coverings reduce transmission of COVID-19, especially from those who have the disease but are asymptomatic or pre-symptomatic."

You may be skeptical of the CDC's take on this issue, since the agency initially minimized or dismissed the value of general mask wearing and did not begin recommending it until early April. But McDonald's gloss is fair: The case for this precaution relies mainly on studies involving other viruses, a few laboratory experiments, and observational data that are open to interpretation, combined with the reasonable assumption that any barrier is better than none when it comes to reducing the spread of respiratory droplets. Estimates of how face masks affect COVID-19 cases and fatalities—including the Goldman Sachs study as well as projections by the University of Washington's Institute for Health Metrics and Evaluation, which Whitmer also cites—are therefore highly uncertain.

Although direct evidence remains limited, it was a serious mistake to tell people that masks "are NOT effective in preventing [the] general public from catching Coronavirus," as Surgeon General Jerome Adams asserted early in the epidemic. It is also a serious mistake to imply that the science is more settled than it is in the other direction, especially when that message includes fake, easily debunked numbers that can only reinforce the skepticism of people who were already leery of masks.

The shift from urging people to wear masks to legally requiring that they do so also has the potential to backfire. I am persuaded by the evidence that it's a good idea to wear a mask whenever you are indoors with strangers or outdoors in a situation where maintaining a reasonable distance is impractical. That is what I've been doing for months. I also think it makes sense for businesses to require masks, which they certainly have a right to do, notwithstanding the objections of some especially obstreperous customers. Yet even I bridled when my cellphone was commandeered by the government to announce Texas Gov. Greg Abbott's new order requiring me to do what I was already doing. I suspect that Texans who already were disinclined to wear masks had a similar reaction.

Maybe I'm wrong about that. The Goldman Sachs study found a correlation between mask mandates and declines in COVID-19 cases and deaths, which may show that such orders have a meaningful impact on people's behavior. Then again, the same factors that encourage politicians to require masks—such as rising cases and deaths—may independently encourage people to wear them.

COVID-19 carriers, who frequently do not know they are infected because their symptoms are mild or nonexistent, pose a threat to other people, especially if those people have preexisting medical conditions that raise their risk of dying from the disease. Because of that threat, there is a plausible moral case for legally requiring masks in public places. But that does not necessarily mean it is a smart public health strategy.

According to a Pew Research Center poll conducted in early June, 65 percent of Americans reported that they covered their faces inside businesses "all or most of the time," while another 15 percent said they did so "some of the time." Given the recent surge in new infections, those numbers are probably somewhat higher now.

The practical question is whether a legal mandate is the best way to reach the recalcitrant minority. Since mass enforcement is impractical, the government will still be relying mainly on voluntary compliance rather than fear of punishment. Will the young, healthy people who are especially likely to eschew masks change their minds when the government orders them to cover their faces? I have my doubts.

Nor is it clear where Trump would get the legal authority to impose a nationwide mask mandate even if he were inclined to do so—an issue Whitmer does not even mention. States have broad leeway to protect the public from communicable diseases, and many state legislatures have granted the executive branch wide authority in that area (although exactly how wide is a matter of dispute). But the federal government's disease control authority is based on the congressional power to regulate interstate and international commerce rather than a general "police power."

The Public Health Service Act, for example, empowers the Secretary of Health and Human Services to "to make and enforce such regulations as in his judgment are 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." More controversially, Congress could cite COVID-19's impact on interstate commerce as a rationale for enacting a mask mandate. But without new legislation, the president would be asserting unilateral public health powers with no apparent basis in the Constitution.

When it comes to deciding when COVID-19 lockdowns should be imposed or lifted, Whitmer surely would deny that the president has any such authority, notwithstanding his assertions to the contrary. But when it comes to imposing a mandate that she favors, she is urging the president to claim a power he does not seem to have. I think it is fair to say that Whitmer has not thoroughly considered the implications of such short-sighted, result-oriented legal reasoning.