The Volokh Conspiracy
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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.