The Constitutionality of a Federal Mask Mandate, Part II

Can Congress mandate that people in many (most) places wear masks?

|The Volokh Conspiracy |

On Friday, I speculated whether Congress could enact a mandate that all people must wear masks. Or, could a President Biden use executive action, as he suggested, to impose such a mandate? My short answer was no. NFIB v. Sebelius would not allow the federal government to require people to put on a mask.

Jack Balkin replies, and offers a different definition of a mask mandate.

A mask mandate is not a generalized requirement to wear masks at all times. It is a requirement to wear them at certain times and places, and when performing certain activities. And a requirement to wear a mask can be directed either to the person who wears the mask, or to the business or entity that operates the place or facility where a mask must be worn.

I take Jack's parry to suggest that my initial post about an actual mask mandate was a correct reading of NFIB. Jack floats five ways that Congress could impose a quasi-mask mandate.

First, Jack contends that Congress could require anyone who enters a business "that engages in interstate commerce" to wear a mask:

First, Congress could regulate people who enter and use businesses and places of public accommodation. It could provide that any person who enters any business or any place of public accommodation that engages in interstate commerce, or that uses goods shipped in interstate commerce, shall wear a mask while within that business or place of public accommodation.

I'll offer a friendly, doctrinal amendment. Congress could use its Necessary and Proper Clause powers to regulate people who enter a business that engages in economic activity that, in the aggregate, has a substantial effect on interstate commerce. The Commerce Clause, standing by itself, is insufficient. Congress would need to rely on the Necessary and Proper Clause, or as Justice Scalia called it, "the last, best hope of those who defend ultra vires congressional action."

This first solution relies on Katzenbach v. McClung: Congress can regulate local businesses so long as their activities has some nexus, or hook to interstate commerce. For example, a local restaurant may only cater to local patrons, but it uses materials produced in other states. Jurisdictional hook, satisfied! At first glance, Katzenbach and its progeny is helpful, but that line of cases concerns the regulation of the business. For example, Congress can impose health and safety codes for workplaces (think of OSHA). Here, Congress would be regulating the customer, directly. The business may have some nexus to interstate commerce. But what about the customer who walks in off the street?

Jack refers to the line of cases that allow Congress to regulate the "channels" of commerce:

The federal government, under its Commerce Power, may act to protect the channels of interstate commerce and businesses and places in which interstate commerce is conducted. It could reasonably conclude that the presence of people who pose a threat to public health also pose a threat to these businesses and places of public accommodation.

Still, cases like Darby and Heart of Atlanta involve the regulation of the business, not the customer. I am struggling to think of a case where Congress imposes requirements of how customers must behave in a business connected to interstate commerce. I'll need to give this option some more thought.

Second, Jack writes that Congress could extend its mandate beyond the four walls of the business to the "outdoor areas, and [to people] while [they are] waiting in line on adjoining sidewalks." He adds, "Congress could require that anyone who travels within ten feet of a business must wear a mask. This [requirement] would cover most sidewalks in business areas."

This bill would be tougher to square with the Court's commerce clause jurisprudence. If a "sidewalk" is considered a channel, or instrumentality of interstate commerce, then Congress could regulate virtually every inch of pavement in the United States. Moreover, sidewalks are the quintessential forums that states can regulate. That conception of the Commerce Power has to be too broad. Indeed, sidewalks would be treated by the never-ending "waters of the United States." A dollop of asphalt will be within the federal power.

Jack's second approach also resembles the so-called "buffer" laws that prohibit certain conduct within X feet of abortion clinics. Consider the Freedom of Access to Clinic Entrances Acts (FACE Act). This law, in the words of DOJ, "prohibits the use or threat of force and physical obstruction that injures, intimidates, or interferes with a person seeking to obtain or provide reproductive health services." FACE has been upheld against numerous Commerce Clause challenges, post-Morrison. For example, the Sixth Circuit found "In light of the extensive congressional findings regarding the economically disruptive effects of clinic blockades and anti-abortion violence, we find that a formal jurisdictional element is unnecessary because the proscribed activity targets 'reproductive health clinics that are, by definition, directly engaged in the business of providing reproductive health services.'"

I think Jack is proposing a 10-foot buffer zone around every single business in America that has a sufficient connection to interstate commerce. In other words, a 10-foot buffer zone around every business in America. I think this buffer zone could very well swallow huge chunks of any dense urban area. Such a law would need to have a limiting principle of some sort. For example, if there is an apartment building next to a restaurant, a 10-foot buffer zone would require people to wear masks in their home–or perhaps in some rooms of their home. Even with these carveouts, I am skeptical Congress's Necessary and Proper Clause powers would stretch to every inch of pavement in the United States.

Third, Jack considers a mandate that would operate not on the customer, but on the business itself:

Next, instead of directing its regulation at people entering or using businesses, Congress could direct the regulation at the businesses themselves. Thus Congress might provide that any person who owns or operates a business or place of public accommodation which engages in interstate commerce, or that uses goods shipped in interstate commerce, shall enforce a rule requiring the wearing of masks within that business or place of public accommodation (with exceptions for persons who are not within six feet of anyone else).

I think there is settled precedent that Congress can establish rules for businesses and their employees. (Again, think of OSHA). But is there a precedent that allows Congress to require that customers follow certain rules? After all it is the business that has the nexus to interstate commerce, and not the customer. Moreover, such a law may have "proper" problems. Here, Congress is requiring the businesses to enforce a mandate on individuals by proxy. I think there is a colorable argument that such a justification is pretextual–that is, Congress is actually trying to achieve something it cannot do (a mandate on individuals) indirectly. I am less confident with this argument, but I do not think Congress can sidestep the Necessary and Proper Clause problems by shifting the onus onto regulated entities. I don't know if the one layer of separation changes the analysis. The answer here isn't obvious.

Fourth, Jack offers a slight variant of his third proposal:

Congress could focus on the owners of these facilities. It could provide that any person who owns or operates any facility of interstate commerce used for travel shall enforce a rule requiring the wearing of masks for persons using that facility (with exceptions as noted above).

I'm not sure what the difference is between three and four. In both cases the business, or the business owner, is required to impose a mandate on his customers.

Fifth, Jack writes that Congress could impose a mask mandate on people who use the instrumentalities of Congress:

Next, Congress could focus on technologies  of travel. It could provide that any person who uses any facility of interstate commerce for travel, whether privately or publicly owned (e.g., a car, a motorcycle, a taxi, a limo, an Uber car, a bus, a subway, a boat, or a plane) shall wear a mask during the entire period of travel.

I think this position has more precedent. For example, Congress imposes a host of mandates on people who fly airplanes. For example, airplane passengers are required to put on a seatbelt, watch a safety briefing, and if cabin pressure drops–you guessed it–wear a mask! I'm not sure this reasoning would extend to privately-owned modes of conveyance. Congress imposes mandates that car manufacturers include seatbelts, but states in turn require people to use those seatbelts. I do not think Congress could reach every single mode of private, non-commercial travel.

There is a sixth approach not in Jack's blog post, but that he mentioned in our email exchange: the spending power. Congress could offer states federal funding in exchange for imposing a mask mandate. This approach would resemble the spending bill at issue in South Dakota v. Dole: states were offered money for highway repairs in exchange for raising the drinking age to 21. This approach would obviate the need to decide whether Congress has the power to require people to wear masks–direct or indirectly. Instead, Congress could bribe the states to use their own police power. So long as the amount withheld is non-coercive, per NFIB, this approach would likely be constitutional.

I had long thought the line in NFIB between activity and inactivity was largely pointless, unless Congress tried to impose a purchase mandate. Well, here we are, debating whether Congress could mandate people wear masks.

NEXT: Protests Outside People's Homes (Residential Picketing) and the First Amendment

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  1. What exactly is the big f**king deal here?

    Just wear a mask, ok?

    Or are you like a little kid who crosses his arms and says, “I WON’T eat my vegetables!! And you can’t make me!!”

    1. Masks ARE NOT proven to reduce spread of the virus, or any virus, nor to make people safer. Mask proponents like to pretend it’s just common sense, but it is not proven, and many studies show little or no correlation between mask mandates and infection or death rates.

      You sound like the little statist who cried wolf.

      1. It[s the same thing as requiring children salute the flag — it’s a national dress code and what;s wrong with telling women they can’t wear pants in public?

      2. It[s the same thing as requiring children salute the flag — it’s a national dress code and what;s wrong with telling women they can’t wear pants in public?

      3. The CDC and WHO disagree.

        1. And others disagree. That’s what I said. It is not settled science.

          The CDC and WHO have lied their asses off about everything COVID, contradicted themselves over and over. There’s a term for only believing what you want to believe and labeling all the rest as heresy.

        2. “The CDC and WHO disagree.”

          What’s the CDC’s position on masks this week?

      4. If masks are truly as effective as advertised – why are kids under age 5 (in most jurisdictions) exempted?

    2. “What exactly is the big f**king deal here?

      Just wear a dress, ok?

      Or are you like a little kid who crosses his arms and says, “I WON’T eat my vegetables!! And you can’t make me!!

      Oh, that’s next, government mandating we eat what it decrees and not what we want. And as an aside, abortion could be banned under the same Federal authority as a mask mandate.

      Just don’t get pregnant, OK?

    3. I have the same sentiment = What exactly is the big f**king deal here? Just wear a mask, ok?

      But I am definitely not a fan of doing this by government coercion. People should wear masks when it is impossible to physically distance just out of common sense, courtesy & respect for others around them.

      States seem to be doing this ‘mask mandate’ on their own. Or not.

      1. Actually the policy of “wear a mask when not socially distancing” could promote the spread of the virus.

        There is little evidence that mask use prevents spread; there is more evidence that social distancing is effective. By telling people that they can get close to each other if they wear a mask, you a replace a likely ineffective containment mechanism with a more likely effective one.

        Anyone who expects government to make either scientifically or morally supported decisions for them is simply in denial.

        1. There is also evidence that wearing mask means collecting far more germs than would happen otherwise, in one spot; every time you cough, you send them flying; every time you adjust the mask or move it down to be understood or to eat or drink, you contact the filth which has collected.

          It is not proven and not settled.

          Anyone with half a brain would recognize how unsettled it is just from the government mandates; or at least anyone who doesn’t salivate at the thought of more government control.

          1. Wow. Just wow. The amount of motivated reasoning here is simply staggering.

            See https://www.sciencedaily.com/releases/2020/06/200612172200.htm for just one example of why you’re delusional.

            1. ah….Clem, about that study you cite:

              It appears to be funded by a foundation that may have interests in coronavirus drug developments at Texas universities.

              The study’s lead researcher is a Professor of Atmospheric Sciences and Geosciences; one co-author appears to be a chemistry prof specializing in “understanding the threat to the Earth’s ozone layer of human-made halocarbon gases”; others are not named but described as colleagues from various universities (a second Zhang, Li, and Wang.) Are any of them virologists, epidemiologists, or internal medicine doctors of any kind? It doesn’t say.

              The study repeatedly says China was successful with a mask strategy against Covid but offers no description of the kind of masks they say are effective, unless their study contends any and all “face coverings” save lives, which would be scientifically questionable. Nor does it stipulate any adverse medical effects of mask wearing and weigh them against the upside they claim.

              1. So it’s the Global Warming cadre…

            2. Ah Chem – the third paragraph of the article shows the study is crap

              3rd paragraph – “Our results clearly show that airborne transmission via respiratory aerosols represents the dominant route for the spread of COVID-19,” Zhang said. “By analyzing the pandemic trends without face-covering using the statistical method and by projecting the trend, we calculated that over 66,000 infections were prevented by using a face mask in little over a month in New York City. We conclude that wearing a face mask in public corresponds to the most effective means to prevent inter-human transmission.”

              A) As noted in the study, the transmission is primarily via aerosols. The masks do little if nothing to slow the spread of the virus for aerosols, The masks are way too porous for aerosols as opposed to droplet transmission. Have you noticed your glasses fogging up when wearing a mask? That is the aerosols escaping. At best, the masks only reduce the risk of transmission by 5-10%.
              B) The last sentence of the paragraph claims masks are the most effective in preventing the spread of the virus. That is well known BS. Space & time are vastly more effective. Space as in social distancing and time reduction in the time of interaction with others. Masks are at best a distant 3rd in the ranking of effectiveness.

          2. Nearly all of the studies I saw a few months ago on the net pertaining to the ineffectiveness and health risks associated with mask wearing, including studies and warnings posted at the CDC, are now more difficult to find, at least with a Google search.  

            So, this morning I searched for the effects of sleeping with a sheet or light blanket over one’s head (nose and mouth) at night, which would be very much like wearing a non-medical mask or fabric over one’s airways during the day at a job or event, or when running errands at stores.  Keep in mind that, in both cases of night and daytime use of airway coverings, they are often removed for a short while to “catch one’s breath” or drink a beverage before masking up, again.

            These studies and articles that haven’t been buried, yet, due to Covid, conclude that breathing through material for any length of time is, indeed, an unsafe practice, due to rebreathing exhaled air and the potential for hypoxia which can lead to brain damage and a weakened immune system damage, as well as increased exposure to germs and foreign fibers and dust.

            Here’s a study linking breathing through fabric on a regular basis with increased risk of dementia:  sites (dot) google (dot) com/site/rebreathingsite/survey-results 

            Another article warns of brain damage, restricted air flow, increased CO2 levels, and lack of alertness:  sleepholic (dot)com/sleeping-with-blanket-over-head/ 

        2. ATR comment – “There is little evidence that mask use prevents spread; there is more evidence that social distancing is effective. By telling people that they can get close to each other if they wear a mask, you a replace a likely ineffective containment mechanism with a more likely effective one.”

          Concur – social distancing is by far the most effective means of reducing transmission, second most effective means is reducing time of contact with others. Space and time are vastly more important in reducing the spread. Masks and washing hands, are distant 3rd and 4th means of reducing the spread.

          A further point is the the transmission is primarily via aerosols, not droplets, which means masks do little in the way of reducing the risk of transmission.

    4. “You really should wear a mask even if you don’t think you need it!”

      “You mean like carrying a gun?”.

    5. What exactly is the big f**king deal here?
      Just wear a mask, ok?

      The big deal is that there are limits to what the federal government has power to do, or at least that was the understanding for the first 150 years of the Constitution. You can discard any Constitutional protection by just parroting your line:

      (1) What exactly is the big f**king deal here?
      Just don’t go out on a protest, ok?
      I mean it’s hot outside, and no one is interested anyway.

      (2) What exactly is the big f**king deal here?
      Just don’t go to church, or synagogue or a mosque, ok<
      I mean, can't God hear you at home?

      (3) What exactly is the big f**king deal here?
      Just don't post your opinions online, ok?
      I mean who even pays attention to your opinions.

      (4) What exactly is the big f**king deal here?
      Just pay your taxes and some will go to support the local church, ok? I mean your share of that support is only 10 cents. You spend more than that on a pack of chewing gum.

      (5) What exactly is the big f**king deal here?
      Just don't write your Congressman, ok? I mean he or she is very busy and has not time to read your letter anyway.

      That's just the First Amendment, you can go through the rest yourself.

    6. Respecting the limits of federal power is a big fucking deal.

      Or do you think Trump gets to so whatever he wants?

    7. Bored Lawyer brings up an excellent point. How many pro-mandate governors have also condoned all the protests, looters, and vandals running around with neither social distancing nor masks? But only for Black Lives Matter, which is precious since it is those same politicians who have done the most to encourage the militarization of police, the police unions, qualified immunity, and everything at the root of the protesting, looting, and vandalizing; and yet, they condemn smaller and less destructive protests by those protesting the lockdowns.

      Buncha f*ckin’ hypocricy.

      1. It gets better — the same health nazis who mandate masks wish to exempt BLM protests because of the “public health crisis” of racism.

        Now tell me that’s not politics pretending to be science — and exactly why should we believe these schmucks on anything else?

        We increasingly are becoming a country divided — one half free and the other half masked. That will not end well…

      2. How many pro-mandate governors have also condoned all the protests, looters, and vandals running around with neither social distancing nor masks?

        None.

        1. David — Massachusetts has.

        2. David,

          You’re right. They only condoned “peaceful protests” while ignoring or denying all the violence and crime, right?

          And only the protests that followed George Floyd’s drug overdose. The earlier protests against shutting down small businesses were not ok.

          1. Yes, they only condoned peaceful protests. And they did not condone protests without masks.

            1. They condoned violent protests that they labeled “peaceful” while denying that the protests were actually violent.

              Even now, Democrats and CNN (but I repeat myself) are calling for “unrest in the streets.” Have a look: https://www.youtube.com/watch?v=jFEGO1R7KEo

    8. My state makes it a crime to wear a mask in public.

    9. If wearing a mask is no big deal, why are politicians so ate up with forcing them? Good ideas don’t need to be forced.

      1. If ending slavery was a good idea, why did we need a civil war? Good ideas don’t need to be forced.

        1. Did you actually think that the North went to war to end slavery? I thought you were smarter than that. That’s bottom of the barrel stupid.

  2. The business may have some nexus to interstate commerce. But what about the customer who walks in off the street?

    Not wearing a mask inside a business could infect people who are engaging in commerce but won’t be able to in the very near future.

    1. That strikes me as the obvious argument. The consumers are participants in interstate commerce (as defined by SCOTUS) and are inflicting harm on enterprises and people who are a part of it.

      1. The consumers are participants in interstate commerce (as defined by SCOTUS)

        The consumers are also entering Wonderland and having tea with the Queen of Hearts, according to Lewis Carroll.

      2. The consumers are participants in interstate commerce (as defined by SCOTUS)

        Wow, who knew that “interstate commerce” included choosing to eat something other than mushrooms and berries from one’s own backyard? Though after Raich, I suppose you’d say not even that should be exempt….

        1. I think Raich does cover it.

          I think Wickard and Raich go too far. But they are the law.

          1. I think Raich does cover it.

            Thus proving that at times satire really is indistinguishable from reality.

            When you can say with a straight face that there are no longer any limiting principles to your theory, it might be time to revisit that theory.

            1. Whether or not Raich has any limiting principles, it’s the law on the books. In terms of what a government has the power to do, that matters more than a grand unified theory of the commerce clause.

        2. The consumers aren’t participants in interstate commerce. But, they are participants in economic activities that have a substantial impact of interstate commerce.

          1. But, they are participants in economic activities that have a substantial impact of interstate commerce.

            I never would have guessed that a fundamental liberty like eating would fall prey to the Kevin Bacon game. Fascinating stuff.

            1. Eating? The consumers are shopping.

              1. Even pedantry becomes somewhat more difficult without occasional nourishment. Try it sometime.

                  1. That was more of a response than I typically consider appropriate for too-cute-for-words arguments.

                    If you want try to explain to the class how any meaningful proportion of today’s populace in the United States of America can eat food without buying it from someone else, knock yourself out. Otherwise, it seems to me you need to belly up to the bar and forthrightly argue that the U.S. Constitution allows the federal government to compel people to act in completely arbitrary ways if they wish to continue to live. We’ll save the “life, liberty, and the pursuit of happiness” bit for the next round.

                    1. Of course almost all people can’t eat food without buying it first. But, that fact has no relevance to the debate over whether mask mandates are authorized by an enumerated power.

                      Now perhaps you are instead making a different argument that mask mandates interfere with the fundamental right of life. If so, then state and local governments cannot impose mask mandates. Nor can they impose a mandate to wear shoes. I have no doubt such mandates are not subject to anything more than rational-basis review, and would survive a court challenge.

                    2. Now perhaps you are instead making a different argument that mask mandates interfere with the fundamental right of life. If so, then state and local governments cannot impose mask mandates.

                      Setting aside for the moment whether state and local governments do actually have that power, if you’re effectively trying to argue that if a state or local government has the power to impose a requirement on its citizens, then the federal government has that same power, I think we’re done here.

                    3. if you’re effectively trying to argue that if a state or local government has the power to impose a requirement on its citizens, then the federal government has that same power

                      No, I am not making that argument. I am saying the fact the people have to purchase food in order to eat has no relevance as to whether the federal government has the power.

          2. As covered by the Substantial Impact On Interstate Commerce Clause, I assume?

            Interstate commerce clause jurisprudence is a real mess, because Congress didn’t want to be limited to just the powers the Constitution legitimately granted it, and the courts were willing to grant them the powers they deliberately weren’t given over intra-state commerce.

            1. It’s covered by The Necessary and Proper clause.

              1. You’re rolling with the too-clever arguments today. I bet nobody has ever thought of trying to use the N&P clause to bootstrap arbitrary unenumerated powers before.

                1. Firstly, Professor Blackman confirmed what I claimed in the OP. Secondly, your claim that a mask mandate is an arbitrary unenumerated power begs the question.

                  1. Firstly, Professor Blackman confirmed what I claimed in the OP.

                    Oh, so Professor Blackman is an authority when he agrees with you? Got it. In any event, he attached a number of caveats to his hypothetical that you (I take it deliberately) did not attach to yours.

                    Secondly, your claim that a mask mandate is an arbitrary unenumerated power begs the question.

                    Not in the current universe in which we find ourselves. The enumerated powers are… well, ENUMERATED.

                    The fact that you feel like you can argue with a straight face that my walking into a grocery store down the street from my house — whether or not I actually buy anything — is behavior that can be subjected to federal regulation under the enumerated power of “regulat[ing] Commerce among the several States” shows just how far through the looking glass we’ve traveled. Federal police power, here we come!

                    1. The Necessary and Proper clause is an enumerated power.

                    2. The Necessary and Proper clause is an enumerated power.

                      Right — which means that, even though it may not feel in vogue, we can actually read it and see what it says.

                      Unfortunately when we do so we learn it’s not the blank check people dream of, but that it simply authorizes the passage of laws in the furtherance of other powers specifically granted by the Constitution. Which of those powers do you feel applies here?

                    3. Most people would say the General Welfare clause, but I lean towards the Calling forth the Militia to Repel Invasions (of viruses, or spreaders thereof) Clause.

                    4. The Commerce Clause. Namely, the power to mandate masks is Necessary and Proper to control interstate commerce because the mandate substantially affects interstate commerce.

                    5. Whatever power that permits the national Public Health Service, which already has the quarantine power.

                  2. Our constitution is a document of limited powers. Given that, what are the limits under your interpretation?

                    1. The federal government can’t regulate non-economic activity that has only tenuous links to interstate commerce (Lopez and Morrison) and can’t force someone into commerce who is not engaging in economic activity (NFIB).

                    2. Be more specific. What activity isn’t economic under your interpretation? What links to interstate commerce are only tenuous?

                      For example, all people have to engage in economic activity (with interstate implications) at some point, and their behavior outside of that will have an effect on their conduct of that economic activity. ie, if you get infected with Covid during this imaginary ‘non-economic’ activity, it will affect your economic activity. Is it therefore capable of being federally regulated?

                      (Keep in mind Wickard here, which held that activity which may impact ‘interstate commerce’ even though it is not itself commerce, may be regulated. ie, growing food for your own consumption, which is not, on-face, economic activity, or if it is, *everything* is).

                    3. The law at issue in Morrison provided civil remedies to people who were victims of violence motivated by gender. As the Court stated

                      Gender-motivated crimes of violence are not, in any sense of the phrase, economic activity. While we need not adopt a categorical rule against aggregating the effects of any noneconomic activity in order to decide these cases, thus far in our Nation’s history our cases have upheld Commerce Clause regulation of intrastate activity only where that activity is economic in nature.

                      In Raich the Court clarified that production, distribution, and consumption of commodities are all economic activities. Filburn was both producing and consuming a commodity.

                    4. And, shopping is an economic activity. So, requiring a mask while shopping falls within Congress’s powers.

                    5. “In Raich the Court clarified that production, distribution, and consumption of commodities are all economic activities.”

                      So if I’m at home making dinner, watching a movie, or painting the walls, i’m engaged in an economic activity, because those are all ‘consumption’? What doesn’t qualify as economic activity?

                      (Apparently violence according to Morrison… which is hopefully a very small to non-existent part of most people’s lives. That’s the only thing that seems excluded. I find it entertaining that the only thing you can name which is not economic activity is illegal.)

                      “And, shopping is an economic activity. So, requiring a mask while shopping falls within Congress’s powers.”

                      Economic activity does not get you to ‘interstate commerce’, or even ‘commerce’. While production and consumption might be economic activities, they are not ‘commerce’ in any sense of the word. (“Commerce” refers only to the economic activity of large-volume buying and selling. Neither production nor consumption is ‘commerce’, and individual consumer purchases are also not ‘commerce’).

                      I mean, under Wickard v. Filburn, everything is interstate commerce. But the supreme court was simply wrong then. Interstate commerce must mean directly interstate commerce, not tenuous connection to interstate commerce. The idea that all commerce, and even all things commerce adjacent (which is pretty much all lawful activity), was intended to be included under the umbrella of “interstate commerce” is pants-on-head stupid. If the founders had simply meant ‘commerce’, they wouldn’t have modified it with ‘interstate’. And if they’d meant all economic activity, they would have said so. The word ‘interstate’ has to mean something that distinguishes ‘interstate commerce’ from commerce more generally.

                    6. What doesn’t qualify as economic activity?

                      Mere possession of something.

                      Economic activity does not get you to ‘interstate commerce’, or even ‘commerce

                      Correct. However, the Necessary and Proper clause permits federal regulation of economic activity that substantially impacts interstate commerce.

                    7. Me: What doesn’t qualify as economic activity?
                      You: Mere possession of something.

                      But the moment you use it, it’s consumption.

                      And that depends on the good. Mere possession of a painting probably counts as consumption.

                      Me: Economic activity does not get you to ‘interstate commerce’, or even ‘commerce
                      You: Correct. However, the Necessary and Proper clause permits federal regulation of economic activity that substantially impacts interstate commerce.

                      It is neither necessary nor proper for the federal government to regulate individual consumer activity in order to regulate interstate commerce. A local store isn’t even a nexus of interstate commerce. (The nexus would be, at best, the warehouse, which the customer never sees or visits).

                    8. Oh, and regarding mere possession: mere possession will decrease my demand for similar goods, therefore, it is economic activity. (By the exact same logic as Wickard v. Filburn)

                    9. From Lopez:

                      Even Wickard, which is perhaps the most far reaching example of Commerce Clause authority over intrastate activity, involved economic activity in a way that the possession of a gun in a school zone does not.

                      It is neither necessary nor proper for the federal government to regulate individual consumer activity in order to regulate interstate commerce

                      That sounds like your policy preference rather than a statement about the law. McCulloch v. Maryland established that “necessary” means useful and “improper” as commandeering the states or forcing people into commerce.

                    10. Care to explain how a mask mandate isn’t compelling purchase?

                    11. Also, ‘necessary’ = ‘useful’ is another terrible interpretation, but even given that, it’s not at all clear how a mask mandate is ‘useful’ for ‘regulating interstate commerce’. (It might be useful for other things, but the government isn’t empowered to do any useful thing, only useful things within their ascribed powers).

                    12. Let me amend my comment a bit. It is not proper to force people into commerce who aren’t already engaging in an economic activity. Shopping is an economic activity. Thus, a mask mandate while shopping is proper.

                      Per Raich it is useful (in the sense of the N&P clause) to regulate economic activity that has a substantial affect on interstate commerce.

                    13. Didn’t we just determine everything is an economic activity?

                  3. No. Possessing a gun is not an economic activity. An Act of violence is not an economic activity.

                    1. How is possessing a gun not an economic activity. Just like the argument in Wickard, possessing a gun will decrease my demand for additional guns. (Not necessarily to zero, but it will decrease it).

                    2. Also, are you arguing that, while you can’t just mandate people buy health insurance, but you *could* mandate people have health insurance to access health care? (Because accessing healthcare is an economic activity, since healthcare is a service. And which is a mandate to buy health insurance).

                      This argument seems pants on head stupid. All mandates could just be rephrased to be mandated under any conditions in which you’d use the mandated thing, and voila, now it’s connected to an economic activity (since all use is consumption).

                    3. I think I need to add McCulloch v. Maryland to my list of supreme court decisions which are obviously wrong (at least in part). Necessary = useful makes no sense.

                      It *may* be useful if everyone owned health insurance, or wore a mask, or whatever else statists want today. But that doesn’t make it necessary to *mandate* it, (much less proper to do so). Just like you can’t get from ‘ought’ to ‘is’, utility does not get you to necessity.

                    4. How is possessing a gun not an economic activity.

                      One last time from Lopez

                      Even Wickard, which is perhaps the most far reaching example of Commerce Clause authority over intrastate activity, involved economic activity in a way that the possession of a gun in a school zone does not.

                      you *could* mandate people have health insurance to access health care

                      Perhaps, but Congress did not do that. It instead required people to have health insurance before they accessed health care.

                    5. What’s the substantive difference. You’re basically saying you can mandate anything with a little verbal legerdemain.

                    6. If Congress had engaged in “a little verbal legerdemain,” and you weren’t required to carry health insurance until you accessed health care, too many people would wait until they got sick to carry health insurance. That’s a big substantive difference.

                    7. Also, there is a substantive difference between requiring masks when shopping versus requiring them all the time.

  3. If you think masks don’t help, you probably think Hillary Clinton is involved in a ring of Satanist child molesters. Both ideas are equally unmoored from reality.

    1. The mask mandate is much worse. Hillary’s child prostitution ring is a private business owner being a tough boss on, what, a few dozen kids? Boo frickin hoo. A mask mandate is the federal government depriving every single American of his fundamental right to be an insensate prolapse asshole. It’s like chattel slavery meets the Great Leap Forward.

      1. This comment has been totally Poe’s Law’d by the ensuing thread. I don’t know what I expected.

        1. (By “thread” I mean the whole thread to Josh Blackman’s OP, not just this subthread to captcrisis’ comment.)

    2. I don’t know of any scientific papers about Clinton and child molestation. I have personally read rather a lot of scientific papers about the effectiveness of various masks and face coverings at preventing disease transmission. Of the studies that paid attention to realistic scenarios (such as that even surgeons with extensive training regularly wear misfitted masks or use them incorrectly), I find the following. At best, they are a minor net gain to total population health. At worst, they are a moderate net negative to total population health.

      More to the point of the article, even if wearing a mask was an unambiguously good idea, that doesn’t mean that it’s a good idea to enforce the rule at the point of a gun. And it especially doesn’t mean that it’s a good idea to throw the entire idea of federalism under the bus for this one rule.

      1. Once these purported medical “experts” started discussing the “medical crisis of racism”, I said “|/dev/null” and meant it.

      2. I have personally read rather a lot of scientific papers about the effectiveness of various masks and face coverings at preventing disease transmission

        I personally totally believe you.

    3. In June, the NIH publish a large metastudy (over 50 member studies) that concluded that N95 and other high-end medical masks help a lot, but the folded t-shirts and quilt pieces the average person is wearing have zero (or even negative) effect on disease spread.

      In July, Lancet published an even larger metastudy that reached the same conclusions – with the added detail that 3+ layer paper and 12+ layer cotton masks *might* help but probably not (80% of studies show no statistical significance). It also concluded that 1m distancing resulting in a 50% reduction in disease risk, and 2m halved it again (to 25% base risk).

      That’s what hundreds of studies have concluded. Can you share your overwhelming evidence that reduces two professional medical publishers of peer review studies to “unmoored from reality”?

      1. No, he’s tried twice with raw assertions. Don’t hold your breath for a third time to have any facts.

      2. Is this the Lancet article you are referring to?

        Chu and colleagues reported that masks and respirators reduced the risk of infection by 85% (aOR 0·15, 95% CI 0·07–0·34), with greater effectiveness in health-care settings (RR 0·30, 95% CI 0·22–0·41) than in the community (0·56, 0·40–0·79; pinteraction=0·049). They attribute this difference to the predominant use of N95 respirators in health-care settings; in a sub-analysis, respirators were 96% effective (aOR 0·04, 95% CI 0·004–0·30) compared with other masks, which were 67% effective (aOR 0·33, 95% CI 0·17–0·61; pinteraction=0·090).

        Later:

        Chu and colleagues also report that respirators and multilayer masks are more protective than are single layer masks. This finding is vital to inform the proliferation of home-made cloth mask designs, many of which are single-layered. A well designed cloth mask should have water-resistant fabric, multiple layers, and good facial fit.12
        This study supports universal face mask use, because masks were equally effective in both health-care and community settings when adjusted for type of mask use. Growing evidence for presymptomatic and asymptomatic transmission of SARS-CoV-213
        further supports universal face mask use and distancing. In regions with a high incidence of COVID-19, universal face mask use combined with physical distancing could reduce the rate of infection (flatten the curve), even with modestly effective masks.14
        Universal face mask use might enable safe lifting of restrictions in communities seeking to resume normal activities and could protect people in crowded public settings and within households. Masks worn within households in Beijing, China, prevented secondary transmission of SARS-CoV-2 if worn before symptom onset of the index case.

      3. Is this the NIH publication you mention?

        Some notes on the results of individual studies:

        Wearing surgical masks in public could help slow COVID-19 pandemic’s advance; masks may limit the spread of diseases, including influenza, rhinoviruses and coronaviruses.

        246 patients were studied. Surgical face masks significantly reduced the detection of influenza virus RNA in respiratory droplets and coronavirus RNA in aerosols, with a trend toward reduced detection of coronavirus RNA in respiratory droplets. The results indicate that surgical face masks could prevent transmission of human coronaviruses and influenza viruses from symptomatic individuals.

        From the article:

        It is well known that surgical masks can prevent the inhalation of large droplets and sprays but have limited ability to filter submicron-sized airborne particles [8, 9]. As SARS-CoV-2 is also embedded in aerosols <5 μm in diameter, it cannot be determined whether they are always effective. However, mask wearing by patients with pulmonary tuberculosis (an airborne infectious disease) has been shown to reduce infectivity to guinea pigs by 56% [9, 10]. The surgical mask has also been shown to intercept other human coronaviruses during coughing [11]. A meta-analysis of randomised controlled trials has also shown that surgical masks and N95 respirators were similarly effective in preventing influenza-like illness and laboratory-confirmed influenza among healthcare workers [12]. Similar results were obtained in a case–control study comparing the protective effect of surgical masks and N95 respirators against SARS among healthcare workers in five Hong Kong hospitals [13].

        1. Those are indeed the metastudies. Notice how N95 and other medical grade masks are rated as effective, but other types of mask “may be” effective?
          If you drill down into the actual results, you’ll see that most studies showed no statistical significance for paper and multilayer cloth masks, while zero disease spread studies found single layer cloth masks to have a statistically significant effect.

          Which is what I posted.
          Many people get confused over the multiple uses of the word “mask” and don’t understand the difference between the types.

    4. Second time you’ve asserted that, without the slightest backing other than “CDC and WHO”, who have discredited and contradicted themselves many many times over COVID.

      Try to think for a change, instead of just obeying your master.

  4. Congress (…FAA) does not make individuals do any of the things you suggest. Rather, they regulate the airline companies, saying they can’t operate without enforcing certain behaviours (such as seatbelts) on the customers. They certainly don’t make you wear a mask in the event of cabin depressurization. The closest they come to any of that is making it a crime to interfere with the flight crew.

    You can fly your own airplane without a seat belt, just as you can drive your car without one. (Moreover, the states probably can’t make you wear a seatbelt in a plane, either, since they are generally preempted by the feds.)

    Of course, states and individual freedom went out with the advent of that interpretation of the Commerce Clause, anyway.

    But it would be a new stretch to regulate this kind of inbididual non-commercial behaviour. If you eat food, any at all, even from your garden, you are impacting the production of food in some way, and that affects interstate commerce, and so Congress can dictate what and where and how you eat. And let’s not forget about breathing — you think air obeys state boundaries?

    1. I can’t say I’ve read the regulations so I can’t speak to what and who is required. But at least the way it is worded with smoking bans on commercial flights is that the passenger can be prosecuted. Same as tampering with smoke detectors. So there certainly seems to be direct regulations on some actions directed at the passenger specifically.

      1. It’s not illegal for a person to smoke on a plane, either.

        Firstly, of course, you can smoke in your own airplane all you want.

        On certain commercial flights, in particular, international flights for the public on carrier airlines, smoking is banned by the FAA.

        But again, what’s going on there is that the regulation is on the airline, not the passengers. What the passenger is charged with is interfering with the flight crew. The airline attempts to enforce a government regulation (related to safety, sort of like your OSHA example), and a private person goes and contaminates the air supply. The statutory fine can be anywhere up to $25,000.

        So if the ICC nexus and the N&P clause can be established, I guess it might be possible to regulate mask wearing inside public accommodations. It would be a regulation on the business owner (who would be subject to direct regulation), and there would need to be a law against “interfering with a business owner attempting to enforce the regulation”.

        That would be a very interesting and powerful law.

    2. Walking down a public street is a RIGHT, flying is a PRIVILEGE.

      There’s a major distinction there.

      And while well intended, the Civil Rights Act of 1964 really was unConstitutional. But let Joe BiteMe tell everyone what kind of power-hungry fascists the Democrats are *before* the election and maybe the Republic can be saved from them.

    3. Josh,
      [Following up on DrCoke’s point]: Can you cite to the law or regulation requiring me to use the masks that drop during some airplane emergencies? I did about 15 minutes searching (about my limit for unpaid legal research) and can’t find anything. I suspect that, since it’s highlighted in your OP, you did have something specific in mind.

      1. Maybe it’s just enlightened self interest — above 8,000-12,000 feet there isn’t enough Oxygen for you to function/live. Do we really need a law or regulation in such circumstance?

        Now as to fascist mandates, see: https://www.wsj.com/articles/coronavirus-lockdowns-usher-in-the-new-roaring-20s-11597429525

        1. Sure. But self-interest is of course very different than an actual rule or regulation or law. I mean, if I’m on federal land and I catch fire, I’m gonna “stop, drop, and roll.” But I doubt there’s a federal law that requires me to do this.

          DrCoke. Yes, your “trying for humor” explanation makes the most sense. But after reading many of Josh’s 100+ OPs (I’m guessing), he doesn’t seem to use humor in his VC writings. But it is a reasonable-enough explanation.

      2. santamonica811, I don’t get the impression Josh reads these threads.

      3. Oh he was just going over the top for humor.

        Above a certain altitude, you are going to have a nap no matter what. The pilot, who is wearing a REAL mask by the way, will be emergency diving the plane to a breathable altitude. You will be trying tp fasten an elastic strap on your head and passing out while croaking out, “De goggles, dthey do nouthing….”

    4. 14 C.F.R. 91.107(a)(c) begs to disagree: “[E]ach person on board a U.S.-registered civil aircraft (except a free balloon that incorporates a basket or gondola or an airship type certificated before November 2, 1987) must occupy an approved seat or berth with a safety belt and, if installed, shoulder harness, properly secured about him or her during movement on the surface, takeoff, and landing.”

  5. The people in government can do whatever they want, who is going to stop them?

    Who needs legal analysis when laws or don’t matter?

  6. Those “people in government” issuing mask mandates for the rest of us do not sit in their offices, or school classes, or work at a store for eight hours a day where they are required to muffle their breathing and speech for a terribly long stretch. Most law and mandate makers, together with their de facto enforcer corporate CEO policy makers in the retail and service sectors, have access to private drivers and pilots and shoppers who can don the masks and purchase items for them.

    But our concerned leaders certainly wear their masks for photo opportunities. If we pay close attention, we can barely hear them say from behind their prop masks, “Burdensome mandates for thee, not me. Liberty for me, not thee.”

    Children, dissenting parents, and the middle, working, and under classes don’t have much of a voice in the matter, especially from behind the masks. Literally, one can say, “I can’t breathe” and another will respond, “What did you say?”

  7. Do OSHA rules permit the government to require businesses to enforce safety rules on visitors, customers or other, to their a places of business?

    For example, can it tell a construction company that it must require visitors to wear a hard hat on the site?

    1. Hard hats don’t do much….

      1. It depends on how thick your cranium is. I’ll just leave it at that.

      2. Bicycle helmets were the first step onto the slippery slope of safety-ism. “It’s for the chill-drrun!”

      3. I guess football players don’t really need to bother with helmets either.

    2. “For example, can it tell a construction company that it must require visitors to wear a hard hat on the site?”

      The answer is YES.

  8. This all seems bass ackwards here. If there were an interstate commerce hook, it ain’t through the already idiotically overstretched interpretation of it as an almost endless cornucopia of general lawmaking power, but need merely reflect $6 trillion and counting additional borrowing this year alone to deal with it as government-forced crushed economy.

    Anyway, I am fine letting states deal with it, rather than tempt fate granting a national figure emergency powers. It’s the ones given powers to thunderous applause who are the problems in history.

  9. If I rob a convenience store I have violated the Hobbs Act because the goods the store sells were shipped interstate. If the Hobbs act is constitutional wouldn’t a law prohibiting entry into a business selling such goods also be constitutional? And under Darby, there isn’t a business that doesn’t use something that was involved in interstate commerce.

  10. I still think that NFIB badly misinterpreted the Necessary and Proper clause. There is at least one obvious federal power to compel a private citizen to take action: any U.S. Marshall can tap me on the shoulder to join a posse to enforce a federal law. That power is justified under the Necessary and Proper clause combined with whichever clause justifies the underlying law being violated (e.g., Secretary of State Madison’s view that posses could be used to enforce the Commerce-clause justified Embargo Act). If the federal government is going to compel me to take action, I’d opt for wearing a mask over joining a posse.

    1. Being in a federal marshal’s posse sounds pretty badass. I’m taking that over the mask.

      1. Me too. Are you exempt from the NFA?

  11. Been following the argument over at Balkinization. The other side’s argument basically boils down to, “The federal government has the power to do absolutely anything I think is a good idea, and if you disagree, you want bad things!”

    1. ” The other side’s argument basically boils down to, “The federal government has the power to do absolutely anything I think is a good idea, and if you disagree, you want bad things!” ”

      It’s that vs. a bunch of anti-social malcontents: ‘Nobody can tell me what do so, especially not people with education and credentials and science and experience.’

      Sounds like an interesting debate.

      May the better ideas win . . . and control government by fair elections.

      1. ” … fair elections.”
        ————–
        This crew in the WH and GOP Senate?

        They have no ideas when comes to governance except who to sabotage voting to keep power — and then use it to shred the Constitution.

        That’s what the clingers are voting for.

  12. It is all a joke, the concept of a ‘mask’ is presently undefined, leading to constitutional vagueness, lack of rational basis, lack of purpose. To order a mask is to make claim that the government knows more than it does about the virus. Next will be Fauci goggles based on personal opinion. Hilarious.

    1. What about a mask with something vile — racist or sexist — written on it?

      1. The government compels you to wear an article of clothing in order to go into a business. A business does not want you wearing that article of clothing if it expresses a certain viewpoint. What does the First Amendment say?

        1. I honestly don’t know what the First Amendment would say because of the government mandate and _Cohen v. Calif_ — If _Katzenbach v. McClung_ also applied, I’d say it sucks to be the private businessman. Now as to hostile environment and employees, IDK.

          Whole Paycheck is being sued for banning BLM masks, but that involves employees. https://www.bet.com/news/sports/2020/07/21/whole-foods-blm-masks-employees-sue.html#!

  13. The problem with mask mandates (and all other mandates) in a free society is our rule of law is dependent on voluntary adoption not doing so because some supreme authority dictated it. Of course this little tidbit about “rule of law” gets lost in conversation these days, but it is the basis for most dissent.

    1. Charlie Baker’s mask fiat is becoming like the 55 MPH speed limit.

  14. “I take Jack’s parry to suggest that my initial post about an actual mask mandate was a correct reading of NFIB.”

    Are you capable of writing a single thing without deeply inhaling your own farts?

    1. Relax. We are witnessing conservative legal academia future — and it is magnificent, from the perspective of the liberal-libertarian mainstream.

      It 10 years or so, we’ll be referring to the culture war in the past tense, and learning what replaces conservatism in mainstream America political debates.

      From that perspective, Prof. Blackman is adorable!

  15. After Wickard and Raich, any argument that there’s anything that the courts couldn’t twist into a sufficient nexus for the commerce clause is not serious.

    Hospitals utilize all sorts of interstate commerce, mask use effects the amount of resources hospitals utilize. Bam, already as well reasoned as Raich.

    Yes, they *could* use the more rational standard they apply to some areas, but they don’t have to. Outcome-based reasoning.

  16. Mr Blackman,

    Can you name any power to regulate that is reserved to the states and forbidden to the national government. Anything at all?

    General welfare+necessary and proper+interstate commerce clauses seem to be interpreted to thwart any conceivable limitations on government.

  17. Josh wrote:

    “I take Jack’s parry to suggest that my initial post about an actual mask mandate was a correct reading of NFIB.”

    Balkin responded — after walking through the steps under NFIB that purport to prohibit a mask mandate — that:

    “I beg to differ.”
    ————–
    So, no, Josh. I don’t beleive Balkin signed off on your NFIB take.

  18. Limiting principle? What’s that?

    As your everyday, non-lawyer reader of this blog for years, I can say this is one of the most depressing things I have ever read here.

    “The Law” is clearly as elastic as those in power want it to be. As a protector of an individual person’s inherent rights, it’s about as useful as a tissue paper umbrella in a storm.

    1. How can you tolerate stop signs, center lines, traffic lights, and not-in-the-intersection parking restrictions, DaveM? What do you abide ‘women must wear shirts’ and ‘men must wear pants’ dictates?

      Of course, I jest. About the clothes thing. Everyone knows that modesty is a directive from the Lord God Of The Bible and therefore different, right?

      Traffic restrictions, however, are tyranny!

  19. “How can you tolerate stop signs, center lines, traffic lights, and not-in-the-intersection parking restrictions, DaveM? What [sic] do you abide ‘women must wear shirts’ and ‘men must wear pants’ dictates?”

    Rail against traffic and obscenity laws, if you must, but forcing people to muffle their breathing while having to wear skirts and pants in public and drive cars on public roads with a non-family member passenger is a mandate too far. There is no parallel between having to wear garb of no health consequence, but for current standards of decency, and mandates to wear masks obstructing our physical airways.

    There is no biological harm done to those wearing tops and bottoms, as per community standards, or to state licensed drivers having to obey traffic rules to avoid big confusion on public streets, but masks and face coverings on citizens merely trying to breathe while living their lives pose a documented risk and are burdensome, despite.

    Funny how those who support the “I can’t breathe” social-political meme and its violent reaction/ remedy of riots and destruction don’t get the bigger picture of how our government would hinder by law the free-breathing of everyone of us non-elites, on account of a flu.

    Coincidence or of a piece?

    1. In other words, the idea that all laws, restrictions, and mandates well from the same spring of good intention, state-controlled beneficence, and bona fide Constitutional authority is crude simplisme, and maybe poisonous.

  20. And politicians have been tarred & feathered for less.

  21. The business may have some nexus to interstate commerce. But what about the customer who walks in off the street?

    What about the customer who doesn’t walk in off the street, because no one is wearing masks? Any discernible effects on commerce from that?

  22. A little perspective on covid

    1) Covid is approx 5x to 6x worse than the average flu season,
    2) per capita, the US is below the death rate of the 1957 flu and on par with the 1968 flu and significantly below the 1918 spanish flu.

    Government and People are behaving as if covid is 30-40x the average flu season. There is a massive amount of paranoia regarding covid,

    The current approach of hiding from the virus, lockdowns etc are going to have far worse longterm consequences due to the retardation of the human immune system.

  23. WTF ever happened to “My body, my choice”?

  24. Legality aside, who exactly would be tasked with enforcing this mandate? The FBI? Or perhaps Congress would create a new Bureau of Mask Enforcement with thousands of agents dispatched to all corners of the country with ticket books to haul people into federal court.

    I know many police officers and sheriff’s deputies ostensibly charged with enforcing local mask mandates. Their general attitude, as you might imagine, is they have much more important things to do with their time. And they certainly know to avoid ticketing a black individual, lest they risk becoming a national story.

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