Executive Power

Biden and Trump Now Agree: The President Has No Authority To Impose a Nationwide Mask Mandate

If only that signaled a broader respect for legal limits on executive power.

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Joe Biden, who as recently as Wednesday was claiming he would have the authority as president to impose a nationwide mask mandate, suddenly reversed himself last night. "I cannot mandate people wearing masks," the Democratic presidential nominee admitted during a CNN "town hall," adding that he could still require masks in federal buildings and on federal land.

That concession represents an embarrassing retreat for Biden, who has been talking for months about forcing Americans to cover their faces in public. "I would insist that everybody out in public be wearing that mask," he said in a June 25 interview with a local TV reporter in Pittsburgh. When asked if he would "use your federal leverage to mandate that," Biden replied: "Yes, I would. From an executive standpoint, I would….I would do everything possible to make it required that people had to wear masks in public."

Biden reiterated that promise at the Democratic National Convention last month. "If I'm your president," he said, "on day one we'll have a national mask mandate." 

Speaking to reporters in Delaware on Wednesday, Biden said he had been consulting with his legal advisers about an executive order that would mandate masks in states that have not imposed such a requirement. "Our legal team thinks I can do that, based upon the degree to which there's a crisis in those states, and how bad things are for the country," he said.

Either Biden's legal advisers changed their minds, he misunderstood their advice, or he reconsidered the electoral implications of campaigning for president as the guy who wants to unilaterally impose a requirement that remains controversial even among people who acknowledge the value of masks in reducing virus transmission. While a recent Harris poll found that a large majority of Americans support a national mask mandate, the question did not specify whether that policy would be enacted by Congress or decreed by the president. Furthermore, if people who oppose a mandate feel more strongly about the issue than people who support that policy (as seems plausible), Biden's old stance might have alienated more voters than it attracted.

President Donald Trump, who has sent mixed messages about masks but has never been shy about asserting powers he does not actually have, seized on Biden's plan to mandate face coverings as evidence of his opponent's dictatorial ambitions. "He wants the president of the United States, with the mere stroke of a pen, to order over 300 million American citizens to wear a mask for a minimum of three straight months…no matter where they live," Trump said at a press briefing last month. "He does not identify what authority the president has to issue such a mandate or how federal law enforcement could possibly enforce it or why we would be stepping on governors throughout our country, many of whom have done a very good job and they know what is needed….If the president has the unilateral power to order every single citizen to cover their face in nearly all instances, what other powers does he have?"

Trump's respect for federalism and constitutional limits on presidential power is highly selective, of course. This is the same man who last April asserted "total" authority over COVID-19 lockdowns, saying "the president of the United States calls the shots." Other signs of Trump's situational commitment to obeying legal constraints on his authority include his extralegal ban on bump stocks; his determination to build a border wall that Congress has refused to fund; his talk of punishing news organizations that annoy him by yanking broadcast licenses and loosening libel laws; his threat to withhold congressionally appropriated money from states that allow wide use of mail-in ballots; and his administration's nationwide eviction moratorium—which, like the mask mandate Biden now admits he can't impose, was presented as a response to COVID-19.

That last policy, which Centers for Disease Control and Prevention (CDC) purported to establish this month, is supposedly based on the agency's authority under the Public Health Service Act. A regulation issued under that statute says the CDC's director may "take such measures" he "deems reasonably necessary" to stop the interstate spread of communicable diseases, "including inspection, fumigation, disinfection, sanitation, pest extermination, and destruction of animals or articles believed to be sources of infection."

As South Texas College of Law professor Josh Blackman has noted, such a broad reading of the CDC's authority is highly implausible in light of the specific examples cited in the regulation on which the agency is relying. George Mason law professor Ilya Somin likewise warns that the eviction moratorium undermines property rights, federalism, and the separation of powers.

If the CDC can, in the name of disease control, force landlords to house people who do not pay their rent, it can impose pretty much any requirement under that heading—including the mask mandate that both Trump and Biden now agree cannot be imposed by the executive branch. Given the Trump administration's broad reading of the CDC's authority, the only thing preventing Trump from mandating masks may be his personal antipathy toward them, combined with a political calculation that such a decree would not go over well with his supporters.

As for Biden, there is not much in his long political career that suggests he draws a distinction between what he wants to accomplish and what the Constitution allows. When he mentioned the Constitution during a Democratic presidential debate last year in connection with Kamala Harris' plan to impose gun control by executive fiat, it was striking precisely because he rarely acknowledges limits to presidential authority when they get in the way of policies he likes. Biden's view of presidential war powers, for example, was the broadest of any laid out by this year's Democratic contenders.

In short, there is little reason to believe that Trump or Biden will eschew presidential power grabs simply because they both now agree that an executive order requiring face masks would be a step too far. But I guess we should be grateful that either of them acknowledges there are some things the president cannot do.

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Executive Power Presidential Power Executive overreach Separation of Powers Federalism Coronavirus Epidemics Public Health Joe Biden Donald Trump Election 2020

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91 responses to “Biden and Trump Now Agree: The President Has No Authority To Impose a Nationwide Mask Mandate

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  2. “Biden Now Agrees with Trump: The President Has No Authority To Impose a Nationwide Mask Mandate”

    FTFY

    1. Yup. unreason tries to make it seem like there is no difference between Trump and Democrats.

      There is which is why Trump won in 2016 and will win in 2020.

    2. Biden will probably change his mind about this several times before Election Day, and not even realize he did so.

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  3. Biden wanted to impose an unconstitutional totalitarian nationwide mask mandate, and Trump didn’t. How in the hell is this a “BOTH SIDES!” issue?

    1. It’s not. It’s a bullshit way of framing the issue, in order to allow the author to write an entire article about how Trump is an evil dictator, while pretending to criticize Biden.

      1. Yeah, I also see that. Frankly, Biden’s team reversed their position, not because Biden respects presidential limits (look at the Obama administration) but I’d bet because focus groups didn’t like it and team Biden thought it was hurting them.

        Sometimes I wonder TDS sufferers have never seen a sales presentation, and then see Trump (who makes sales pitches nearly all the time) in contrast to the typical staid ambiguous rhetoric. And just react in horror.

        Sullum calls Trump’s actions extralegal, but I disagree. Sullum ignores that Trump can be sued for extralegal actions (remember his travel ban from “Muslim” countries?) reversing Trump, and Congress delegating the writing of laws to the Executive branch (to avoid responsibility and so we don’t know what the law is when passed, also allowing Trump to rewrite them).

        Sullum argues Trump is situational on presidential power. Trump’s words in paragraph 6 shows he understand presidential limits very well (like a libertarian?). I see Trump’s more of talk big and carry a small stick (in contrast to Teddy Roosevelt). It’s not illegal or extrajudicial for Trump to threaten action that exceeds his authority AFAIK, but it gets people to react which can be positive for many reasons. Sullum covers lots of Trump’s big talk, as there’s not so much stick actions to write about. Trump’s rewriting of the laws (when Congress delegated) is one reason so many in the political class hate him.

        I see Trump as the most libertarian president in 60 years, even more so than Reagan, his talk is that of a salesman, but he hasn’t and can’t get Congress to change direction from it’s spending. Trump may also reverse Congress’ habit of delegating rule writing to the executive bureaucracy, until and if the political class gets the presidency back.

        1. Well said. Thank you.

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        2. Trump’s words in paragraph 6 shows he understand presidential limits very well

          No, they show he has been schooled on this point, and is faithfully repeating what he learned. His instinct is that he has power to do all sorts of things, and is slowly learning the limits. Now that he knows more he will be much more effective in his 2nd term!

        3. Generations of the political elite have made their fortunes producing nothing and feeding off the body of the republic like a pack of ghouls. Trump, who made a billion dollars from rent-seeking, comes along with his narcissism and his blurting and exposes all of them. He is a consummate bullshitter and is still more honest than they are.

        4. There is nothing libertarian about Reagan or Trump. Neither represents the “most libertarian” of presidents.

          1. As opposed to whom?

          2. Hattori Hanzo
            September.19.2020 at 3:26 pm
            “There is nothing libertarian about Reagan or Trump. Neither represents the “most libertarian” of presidents.”

            You are:
            Full.
            Of.
            Shit.

    2. Trump should have wanted a nationwide mask mandate. Won’t someone please think of the elderly!

      1. It would be for our great grandparents’ children!

    3. Because they have looked deep into Trump’s heart and know there is a dictator lurking in there as bad as the worst tyrants in history ( despite him not really attempting to use the presidency’s powers in unprecedented ways.

  4. Just because they agree they can’t do it doesn’t mean Biden won’t do it. Fuck you, that’s why.

    1. “I promised I would”!

    2. I mean, by the time it got through SCOTUS Harris would be wrapping up her second term.

    3. Whatever it is, Biden has said it. He said everything else too, but there’s little he hasn’t promised at one point. Hell, he even promised to cure cancer if elected.

  5. When Dementia Joe said he’d do that if he could he’d have to look into it he just furthered proved he’s full of shit or can’t remember shit because wasn’t Obama’s mighty pen used a few 100 times with executive orders? He’s either a liar or stupid, can’t be anything else.

    1. But it can be both!

      1. Damn you’re fast to correct my correction as I corrected it! Lol

    2. To be fair he is both a liar and stupid. Forgot that potential scenario

      1. “To be fair he is both a liar and stupid”

        You just described all politicians.

  6. It’s fair to gamble on Boden, if elected, mandating a national mask policy via executive order. He really is that dumb, and that spineless. There needs to be an addendum to the ‘those who can, do’ maxim to fit in career politicians, who are capable of schmoozing, lying, graft, self-aggrandizing, and voting to increase their salaries, but as a rule, little else.

    1. Biden… Someday Reason will graduate to an adult commenting process, complete with an edit function.

      1. As buggy as Disqus is, it has editing capabilities and (gasp) notifications. Looks like they’ve had 8,467,910 comments using this crap system and likely don’t have to pay for it, so in their minds, don’t fix what’s free?

  7. I’m not much interested in what Biden says right now. I think if he (or his puppet-masters) want a mask mandate, he’ll sign one if he becomes President.

  8. Is a mask mandate something that people would really vote for? What the hell is wrong with people?

    1. During a feud, people will suffer through anything in order to punish the other clan.

      1. True, but this is about creating fear. Create a crisis that you promise to fix, most people will accept whatever limits you put on them. The more fear of the unknown you can generate, the more liberty people will surrender. “Please, just SAVE us!”

    2. Yeah, I find it really disturbing that so many people want to force everyone else.

      1. It seems to either be ingrained in young people perhaps through overly controlling parents and government schools. When I taught in a government middle school in an affluent Seattle neighborhood, my students always supported bans and were too happy to control and “tattle” on other people. Ban this thing, ban this action, ban everything. I asked them if I should ban food, drinks, and gum in class (I was the only teacher in the building who “allowed” these things), and they said no way, Jose. Why? Because it directly affected them. Perhaps the desire to control others is just part of human nature.

  9. Just a quibble, but a landlord can be forced to house people who do not pay rent if the building is under quarantine.

  10. Both Biden and Harris said they was part of the Harris-Biden ticket a few days ago. So, why are we hearing from #2 and not Kamala?

    1. Because he is white. Clearly America is too racist to listen to someone who is … what ethnicity is Kamala again?

      1. Multi-victimhood.

  11. To be fair, Biden probably just forgot what he’s been saying for months. No worries. Once elected, KAH-muh-luh will remind him what he’s supposed to do.

  12. Obfuscation is the second half of your middle name?

  13. Biden’s got a pen and a phone. Well OK he’s got a pen. He dropped the phone in the toilet. But Kamala and Jill know how to make calls on those confounded contraptions. Where’s my pudding. Nap time.

    1. Only if he can find his pants first.

    2. Today’s applesauce day, Joe. You got pudding yesterday, remember?

    3. Biden isn’t much more coherent than Hihn was towards the end.

  14. I have a dream! That some day, Reason writers will reject whataboutism! They’ll write an article critical of Democrats without injecting similar derision at Republicans. They’ll stop looking at the NYT and VOX for opinions and quotes. And especially, they’ll stop reading and quoting the Jacobin website.

    1. Your dream is but an absurd fantasy. Biden could advocate nationalizing the press, Pravda-style and nuclear war against Australia and Sullum would make sure everyone remembers that Trump has also sent some unkind tweets.

  15. Breaking News. RBG dead at 87.

    1. Shit about to hit the fan.

    2. Right before the election. How convenient.

      Sad and may she RIP but this was a gift to the GOP.

      1. Is there an election in Canada?

        I cannot even go there. Had good times fishing trips up north and some things in Niagara we do not need to go into. Learned how to swim as a kiddo in Vancouver. Nice country you have there.

        Would be great if it could be like that again. Just flash a drivers license at the border and go on through. We used to be neighbors you and I.

        My car, a Dodge Charger v8 r/t was made in Canada. Nice car.

        How did this get so screwed up. It should not have happened yet is much worse in the past 4 years.

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  17. Yeah, I also see that. Frankly, Biden’s team reversed their position, not because Biden respects presidential limits (look at the Obama administration) but I’d bet because focus groups didn’t like it and team Biden thought it was hurting them.

    Sometimes I wonder TDS sufferers have never seen a sales presentation, and then see Trump (who makes sales pitches nearly all the time) in contrast to the typical staid ambiguous rhetoric. And just react in horror.

    Sullum calls Trump’s actions extralegal, but I disagree. Sullum ignores that Trump can be sued for extralegal actions (remember his travel ban from “Muslim” countries?) reversing Trump, and Congress delegating the writing of laws to the Executive branch (to avoid responsibility and so we don’t know what the law is when passed, also allowing Trump to rewrite them).

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  19. good decison taken by trump……..FAUG game

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  21. Biden is a joke. This is the best the Democrats can offer? He was their hand picked nominee. Even the GOP tried to keep Trump at bay.

  22. Oh good grief. Biden on a good day is missing more than a few screws…just they way the cookie has crumbled. These guys are politicians first and foremost, although Trump is not part of the establishment, he has to act the part during the election season. As politicians, they will change their sputtering diatribes like the wind. All politicians are baseless and only follow the establishment crowd. In any event, I refuse to be a masker for any reason since they destroy your immune system…which is your best protection against any FAKE pandemic, especially the 2020 variety.

  23. The dichotomy of Washington insiders vs. outsiders. Trump went into office with the attitude (naively I think) that he should try to solve problems. The federal government doesn’t solve problems. You don’t accumulate power by solving problems. The government MANAGES problems. And once it identifies one it manages it forever. This mask thing is just really, really creepy though.

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  31. Maybe he’s just now coming around to admitting limitations on the power of the office because his presidency would apparently be some kind of advisory role in the Harris-Biden administration.

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  36. As long as I also have to take off my shoes before entering a federal building, I could accept being forced to wear a mask there.

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