CDC Wanted to Require Mask-Wearing on "Airplanes, Trains, Buses and Subways, and in Transit Hubs such as Airports, Train Stations and Bus Depots"

But White House blocked the proposal to regulate the channels and instrumentalities of interstate commerce.

|The Volokh Conspiracy |

The New York Times reports that the CDC asserted the power to require mask-wearing on "airplanes, trains, buses and subways, and in transit hubs such as airports, train stations and bus depots." The article is vague on the source of statutory authority: it merely cites the agency's "quarantine powers." I'll assume the agency has these delegated authorities. Would this delegation of power be constitutional?

I wrote about the constitutionality of federal mask mandates in two prior posts. Jack Balkin had flagged a similar proposal:

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.

Jack suggested that the federal government could regulate the so-called "channels" and "instrumentalities" of Commerce. Chief Justice Rehnquist discussed these two heads of authority in U.S. v. Lopez. Randy and I write in An Introduction to Constitutional Law:

First, "Congress may regulate the use of the channels of interstate commerce." In Darby and Heart of Atlanta, for example, the Court upheld Congress's authority to keep "the channels of interstate commerce free from immoral and injurious uses." In such cases, Congress can regulate local activities that block the flow of interstate commerce.

Second, "Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities." For example, Congress could protect ports and railroads from foreign terrorist attack, even though these hubs are entirely intrastate.

I suggested that part of Jack's suggestion could be consistent with precedent:

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.

The CDC's proposal was more narrow, and would not have extended to private modes of conveyance. This order would probably be within Congress's powers. But I am still skeptical that Congress quietly delegated to the CDC such broad power to regulate every facet of public transportation in the country.

NEXT: Of Biden, Bush, and the History of Judicial Confirmation Fights

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  1. Such a large and intrusive mandate should be proven safe and effective first. It is medical quackery so far, just the Deep State asserting Chinese Commie style power over people. For example, plane ventilation is more secure than that in the average operating room.

    This is a scheme to make everyone look like a Democrat Party douche bag.

    1. Silly boy.
      The US Constitution has already been suspended at all US airports.
      No second amendment.
      No first amendment.
      No fourth amendment.
      No fifth amendment.

      1. “The US Constitution has already been suspended at all US airports.”

        Not just at the airports, everywhere within 150 miles of a US border, so all the seaports, too.

    2. Such a large and intrusive mandate should be proven safe and effective first.

      The Constitution is not a suicide pact

      1. Alpheus, do you have a sleep disorder? See your family MD and ask for a referral to a Sleep Medicine department. You are always yawning.

  2. In 2017, NPR floated this discussion of the CDC’s quest to refresh its quarantine powers for the first time since 1940:

    While he agrees the civil liberties protections in the new regulations should be even stronger, Gostin argues they’re better than relying on the protections in the old rules. The new president is a self-described “germophobe,” Gostin notes.

    “If you’re a germophobe, then you’re going to overreact and the last thing we want in the face of a public health crisis is overreaction,” he says. “And I think having rules in place that are modern at least will provide some buffer against the whims of an administration that may overreact.”

    The irony of them now using their new and improved powers to further a cycle of overreaction–and in direct opposition to an administration that is counseling for a more measured approach–is stunning.

  3. The effect of car seatbelts has hundreds of academic studies showing the benefit. But whatever, the real world death rate from billions of miles driven has dropped like a stone. People know that and support the mandate at a rate of 90%.

    Where are the data for mass mask wearing? I would change my mind about masks in the face of even a small amount of reliable, validated data.

    1. There’s no significant benefit to mask-wearing outdoors where there are no crowds. Any outdoor mask requirement — except maybe in dense urban neighborhoods with crowds — is a rejection of science and merely superstitious emotional people using a ritual to protect against the bogeyman.

      1. “There’s no significant benefit to mask-wearing outdoors where there are no crowds. ”

        Once you’ve bought a mask because you’d like to interact with other people indoors, there’s also no significant cost to wearing it when alone. And don’t discount the effectiveness of the placebo effect, either.

        1. You’re exactly right … universal masking is a mass placebo effect, although, unlike placebos, it does cause harm to a (minority) fraction of the population.

          Making medical decisions based on the placebo effect used to be called quackery.

          1. ” universal masking is a mass placebo effect”

            If there was such a thing as mass placebo effect, it would be.

    2. Sadly, all the mask studies do is prove that they reduce O2 levels, and retain all germs and virus particles directly in front of your mouth and nose.
      And, oh by the way, those studies are for ‘real’ masks, not “cloth face coverings” improperly worn.

      1. As long as you get to define away any facts you don’t like, you can “prove” anything!

      2. “Sadly, all the mask studies do is prove that they reduce O2 levels, and retain all germs and virus particles directly in front of your mouth and nose.

        And, oh by the way, those studies are for ‘real’ masks, not “cloth face coverings” improperly worn.”

        Correct, but anti-science prog types refuse the obvious truth that masks reduce oxygen intake and increase exhalation of CO2 and germs re-introduced back into the body.

        If these people feel better wearing the unsafe masks, after being warned, then we should fee sorry for them and even more for their children. Yet, for them to insist the rest of us comply and comport with the anti-human mask protocols is not the least bit acceptable.

    3. Yes, I can see why you’d be sceptical. After all, literally no such studies have been done if you ignore the ones that give an answer that you don’t like.

      https://lmgtfy.app/?q=Study+mask+covid

      1. Yes, I can see why you’d applaud studies confirming your statist appreciation of state powers to mandate everything you like, in spite of the overall meh of mask studies.

        https://www.acsh.org/search?search_api_views_fulltext=mask

      2. After all, literally no such studies have been done

        As I’ve said before, there is a fundamental difference between a bunch of Johnny-come-lately “studies” that consist of of puffing air through layers of fabric in a lab, and studies that demonstrate actual real-world benefits resulting from actual real-world usage.

        Evidence of the latter is sorely lacking, and posting snarky search links to the former won’t change that.

        1. We now have a meaningful control group for whether or not masks restrict the spread of coronavirus disease. Just ask the people who worked in the White House sans protective measures how effective actively taking no protective measures provides a defense against the disease. What? You say they’re taking protective measures now? I wonder why…

          1. Oxygen is essential to most fauna life as we know it.

            If alleged protective measures against an unisolated and unconfirmed virus reduce it, then life is compromised. Propaganda with its attendent hysteria cannot overrule our need for clean and unencumbered oxygen, but it can easily “mask” its essentiality to the oxygen-deprived and cognitively compromised.

            Even before the vaccine, the “cure” is becoming the disease.

            1. “Oxygen is essential to most fauna life as we know it. ”

              Fortunately, we live on a planetary body with 20% of its gaseous envelope composed of oxygen. Don’t wrap the plastic bad so tightly around your head, and you should be fine.

      3. The NIH and Lancet have both published major metastudies, covering tens of thousands of patients, that quite clearly show that while N95 and other high-end medical masks are effective in reducing viral transmission, no lesser grade of mask showed any statistically significant effect. Those 2- or 3-ply cloth masks you see normal people or politicians wearing actually have several studies showing negative effects!

        If you were actually following science, you’d be attempting to mandate goggles, since they do show a statistically significant effect.

        1. ” Those 2- or 3-ply cloth masks you see normal people or politicians wearing actually have several studies showing negative effects!”

          Negative effects such as…???

          1. Moisture capture will cause very large particles (that would fall to the ground) and very small particles (that would evaporate quickly) to persist allowing each breath to expel viral matter from the mask; inappropriate re-use will cause a blocked viral material to be released later; or excess adjustment/body-mask contact will spread the virus material both ways (from hand to mask or vice versa).

            Plus the individual specific issues (asthma, etc).

            1. Plus, of course, wearing a mask makes you a socialist.

              1. Funny how neither economic, social, or political issues were mentioned, and yet when presented with facts you don’t like, you divert to a complete non sequitur. Why would you do something like that?

        2. Can you please cite these mythical studies?

          The only studies I have seen are meta-analyses with conflicting results (on widely heterogeneous samples). The truth of the matter is that you can no longer have a convincing (ethical) mask study because they are widely used throughout the population.

          1. “A rapid systematic review of the efficacy of face masks and respirators against coronaviruses and other respiratory transmissible viruses for the community, healthcare workers and sick patients” published by the NIH in April, 2020.

            “Physical distancing, face masks, and eye protection to prevent person-to-person transmission of SARS-CoV-2 and COVID-19: a systematic review and meta-analysis” published by Lancet in the June 2020 issue.

            Although I’d like to see your “truth of the matter” study – can you cite it for me, please?

      4. Drops of 1 and 2% in rates cannot be felt by a human being. They are also part of statistical noise, and highly selective. They may also have come from the change in seasons, and from changes in host factors, such as immunity as time passes.

        The virus has a diameter of 120 nm (billionth of a meter), end to end. The best N95 mask has a weave of 300 nm. You can do the math.

        1. The 2019-SARS-CoV-2 virus itself dies very quickly when exposed to air without something around it. What the N95 masks block are the fine droplets of water that are exhaled from the lungs. The droplets are much larger, in the 600nm to 2000nm range, and may contain many instances of the virus.
          N95-rated masks have at least a 95% filter rate at 300nm or larger (that’s the definition).
          Typical cloth masks have a less than 5% filter rate for particles at that size.

          1. “Typical cloth masks have a less than 5% filter rate for particles at that size.”

            As opposed to simply doing nothing, which has a 0% filter rate.

            1. Statistically insignificant effect is the same as doing nothing.
              To people that are not mathematically illiterate, at least.

  4. Totalitarians love their new authority. It’s been out of their reach for so long but now they finally get to police your walking and breathing.

    Driving while black was bad enough, now the police in NY can get you for breathing while Orthodox. In Nevada and California it’s breathing while religious. Other places it’s breathing when the police are having a bad day and want to practice using the taser on someone.

    Not content with policing breathing locally, where Covid case numbers give them an excuse, totalitarians want to expand it nationally so it can be enforced against people in places where there aren’t enough Covid cases to justify it. That’s always the sign their actions are about power and that the justifications are mere excuses.

    1. “Totalitarians love their new authority. It’s been out of their reach for so long but now they finally get to police your walking and breathing.”

      We didn’t actually give Mr. Trump any such authority.

      1. Too bad Trump isn’t the one we have to worry about.

        The dark night of fascism is always descending on the Republicans and yet lands only on Democrats. Say hello to Cuomo, Whitmer, Newsome, etc. But sure, they must be secretly working for Trump.

  5. How is the science-disdaining, anti-social, lethally reckless, belligerently ignorant approach to a pandemic working for Republicans in the election currently being conducted?

    Perhaps the Conspirators should invite Pres. Trump for a campaign appearance at the Volokh Conspiracy, part of his Who Needs Debates When I Have The Clingerverse? Tour.

    1. “How is the science-disdaining, anti-social, lethally reckless, belligerently ignorant approach to a pandemic working for Republicans in the election currently being conducted?”

      You wrote Republicans, but described New York under Cuomo, Michigan under Whitmer…

  6. Let’s not forget masks only help lower the risk of acquiring or spreading Covid. They are not magical devices which make the wearer immune.

    1. Jimmy, if masks knock the contagion rate low enough, then they make their wearers just as immune as any other kind of herd immunity.

      1. assuming a completely false predicate … the a false conclusion follows Otherwise some really sound reasoning.

        Masks solved Covid exactly the same way prohibition solved alcohol use and the drug war solved drugs.

        1. Ben, alcohol and drug use are exponentially contagious?

          1. Does contagion change whether prohibition works? It doesn’t. People don’t obey it. And prohibitionists never learn.

          2. “Ben, alcohol and drug use are exponentially contagious?”

            Never heard of “peer pressure”?

        2. “Masks solved Covid exactly the same way prohibition solved alcohol use and the drug war solved drugs.”

          By non-sequitur?

    2. As always on this topic, the points actually driving the controversy are mostly tacit. This is, once again, a fight between folks on one side who think state collective action can do good, and sometimes ought to be encouraged to try, and folks on the other side who also think state collective action can do good, but ought to be prevented from trying because of that—lest the good done by state action become too popular.

      1. This is, once again, a fight between folks on one side who think state collective action can do good, and sometimes ought to be encouraged to try, and folks on the other side who also think state collective action can do good, but ought to be prevented from trying because of that—lest the good done by state action become too popular.

        Yes, yes, Mr. Lathrop — of course there’s nobody in the world that can actually believe in good faith that state collective action is in general exemplified by the level of service afforded by the DMV, and therefore its role in any truly life-and-death matters should be minimized to the greatest extent possible.

        Whatever.

        1. The same arguments advanced against masks would work similarly with respect to stop signs and traffic signals, yet even the most strident ‘you can’t tell me what to do’ advocates seem to have refrained from arguing and protesting similarly with respect to traffic-related infringements on sovereign patriotic citizenship rights.

          1. Not quite. Look what happens when voters get a chance to repeal red-light and speed cameras, as in Arizona.

  7. The separation of conservatism from reality accelerates.

    1. Leftist “science”: masks help in some cases, therefore we will use them ritualistically as a worship totem, use police to bully everyone into wearing them all the time (especially in situations where they don’t do anything to help anyone), and generally be our usual complete asshole selves to other people on the subject.

      And we’ll skip wearing masks ourselves whenever we feel like it because these rules and the show about them are to put the masses in their place. We leftists are the elite ruling class. We make rules, we don’t obey them. Lol.

      Every “science” topic, same toxic leftist sewer.

      1. You let leftists dictate every aspect of your behavior!

        1. Hostile enemy wonders why victims adjust behavior in response to attacks.

          1. Lazy rhetorician avoids question by theorizing opponent thought process.

              1. lazy rhetorician avoids question a second time by playing stupid.

        2. And you don’t?

      2. Leftist “science”: masks help in some cases, therefore we will use them ritualistically as a worship totem, use police to bully everyone into wearing them all the time (especially in situations where they don’t do anything to help anyone), and generally be our usual complete asshole selves to other people on the subject.

        Shades of TSA security theater, but for breathing.

      3. Don’t forget go out and protest. Social justice makes you immune to Covid. But lockdown protests make you evil and if you get Covid as a result you should be denied healthcare coverage and treatment.

        1. Maybe that explains the higher rate of death among minorities, BLM protests.

          1. And old people. They spend more time protesting, so they’re more likely to die of Coronavirus disease.

  8. I doubt that Congress has any authority to require such rules on subway and bus systems that do not extend across state lines — even if they were built using federal funds, unless the federal funds came with that condition when they were appropriated.

  9. Why would anyone take the other side, and argue that they have a right to spread a potentially deadly disease when and wherever they might wish to do so?

    1. People do not want to look like Democrat Party douche bags or Chinese Commie drones.

      1. They’d rather be actual assholes than look like they care whether other people live or die?

    2. I don’t agree with your effectively accusing everyone who ever “spread” the flu or any other communicable disease of wrongdoing. You just indicted almost all of humanity.

      It’s typical of the really, really stupid shit you say though.

      1. “I don’t agree with your effectively accusing everyone who ever “spread” the flu or any other communicable disease of wrongdoing.”

        Anyone who intentionally spread the flu or any other communicable disease DID do wrong. Stop pussyfooting, looking for a way to defend wrongdoers.

        ” You just indicted almost all of humanity.”

        This would be true, if almost all of humanity intentionally spread diseases. But only a small portion of the whole is actually guilty. This type of poor rationalization is something you do with frequency.

        “It’s typical of the really, really stupid shit you say though.”

        Case in point.

        1. Anyone who intentionally spread the flu or any other communicable disease DID do wrong.

          The problem, as I know you understand, is that in the case of COVID you’re trying to distort “intentionally spread” to mean “I’d like to go out in public without a mask since I feel fine, have zero symptoms, and have no reason to believe I might be sick at all, much less contagious.”

          If you’ve ever seen this standard applied to the flu at all, much less in your lifetime, please do share.

          1. “If you’ve ever seen this standard applied to the flu at all, much less in your lifetime, please do share.”

            There were places where masks were mandatory in the 1918 pandemic.

            1. There were places where masks were mandatory in the 1918 pandemic.

              I think “places” serves quite aptly to disqualify that as anywhere comparable to the present situation, without even splitting hairs on whether people who didn’t wear masks and weren’t sick were characterized at the time as “intentionally spreading” the flu.

          2. “The problem, as I know you understand, is that in the case of COVID you’re trying to distort “intentionally spread” to mean “I’d like to go out in public without a mask since I feel fine, have zero symptoms, and have no reason to believe I might be sick at all, much less contagious.” ”

            Are you done pretending that YOUR words came from MY mouth?

            1. If they’re wrong, please do explain to the class how. I’ll wait.

              1. They came from you and you suggested they came from me. Do you not understand what’s wrong about that?

                1. As all can freely read, I didn’t say any particular words came out of your mouth. Pro tip: quotation marks mean different things in different contexts. Here, I used some words to express a concept you’re trying to bake into the term “intentionally spread.”

                  If you hadn’t actually been caught with your hand in the cookie jar, you’d be able to straightforwardly explain why you weren’t really saying that.

                  But you apparently can’t. Interesting, that.

                  1. ” Here, I used some words to express a concept you’re trying to bake into the term “intentionally spread.””

                    But they’re still YOUR words that you’re suggesting came from me. Which is why I’m not taking ownership of them.

                    Here are some words that ARE coming from me. “fuck off”.

                    1. Nobody suggested words came from you. He suggested an interpretation, that you either can’t argue with because it’s true, or can’t refute because you’re stupid.

                      Fuck off, slaver.

    3. “Why would anyone take the other side, and argue that they have a right to spread a potentially deadly disease when and wherever they might wish to do so?”

      First, prove they’re spreading, knowingly spreading, a lethal contagion and not merely *potentially* spreading one or many other diseases.

      We’re all potentially spreading something. We all should be shut down, yes?

      1. My reply above to James Pollock.

        1. But not very well-phrased. Try again when you have some idea of what you actually want to say.

          1. Pollock, you seem to know all about muddled thinking, since your question-accusation is a doozy.

            Go ahead and mask up, if you’re so afraid, but don’t stop there. Surely, you know by now that masks won’t save you from the virus in the air, on things, and even on our skin and clothes. It can get in your eyes, so you should wear goggles. You should discard your mask in a hazardous waste container, sanitize your goggles, change your clothes, scrub your hands, and take a very hot shower every time you return home or to your office.

            Any items you buy at the store and even the mail in your box need a thorough cleaning, too, before being handled without gloves and a mask.

            Of course, you should only shop for essentials and never eat out. If you’re forced to go to a restaurant for a business lunch, ask for a long table for two outside and be seated at the ends, do not let the waiter hover over you, and follow Gov. Newsome’s and Cuomo’s advice to wear your mask between bites and sips.

            Take a measuring tape with you when you do venture out to verify six-foot distances between you and others. Practice holding your breath for the times individuals potentially infect you by violating the social distancing law, and be prepared to call them out for the potential murderers they are.

            Certainly, you realize your car is a repository of potentially lethal germs and that you should have, at least, the interior scrubbed on a regular basis, especially the steering wheel and all buttons. You have a difficult choice to make between driving with your windows down or using the AC/ heater. Try to locate medical-grade air filters for your car air system, for those days of inclement weather, and change them often.

            If you have a family, be sure to make everyone mask up, especially the children and infants who are less resistant to potentially lethal disease than adults. Why should children under a certain age go bare-faced and unprotected or become potential super spreaders? Of course, you will have them vaccinated with the new Covid shot and series of boosters, along with yourself, just as soon as the Government and Big Pharma make them available.

            Remember to don your masks before leaving the house, because Covid is everywhere. You might also wish to wear them inside, as well, especially if you share a dinner table or bed with someone. Fortunately, if you leave the house for entertainment, you don’t have to worry about potentially lethal spreaders at strip clubs, because the dancing girls (or boys) are all wearing masks.

            On the other hand, your mask won’t let you into most hospitals to visit loved ones. And, when you’re hospitalized from having damaged yourself from oxygen deprivation and constantly rebreathed germs that your body tried to exhale, then at least you’ll have some solitary time to think about how smart you were to avoid the flu.

            (Make sure the docs and nurses socially-distance.)

            1. I’d take your advice, but I have a policy against taking advice from idiots.

              1. Oh oh, your mask is slipping. Try a little tape.

              2. Having a lot of trouble reading today Pollack? Maybe your mask is on too tight. It appears to have cut off blood flow to your brain.

  10. What makes you think anyone is required to wear the oxygen mask in the event of a loss of pressurization? They would likely want to, but are not required to.

  11. Josh, I agree with you that the delegation would be constitutional. You cursorily conclude, however, that Congress has not in fact delegated that authority to the CDC. Is that based on an examination of the relevant statutes? If so, I’d be interested in knowing what those statutes say, and why you conclude that such a delegation did not occur. I’m guessing you haven’t researched the question, which is completely understandable, but I assume they have some power and I wonder what it is. There’s a brief discussion of the CDC’s powers on its website (https://www.cdc.gov/quarantine/specificlawsregulations.html), and after looking at that I’m guessing that they’re relying on Title 42, sec. 264(a). It’s concerned with interstate transportation; based on a superficial examination I think it would authorize mask requirements at airports and train and bus stations (which are hubs for interstate transportation) but not subways (which are intercity). The power is entrusted in the Surgeon General, not the CDC.

    1. ” not subways (which are intercity)”

      There are a limited number of subways which are used for interstate transportation, and a slightly larger set which are parts of transit systems that operate across state lines.

  12. Covid unmasked with a simple insight by commenters at another website, this morning:

    Mr. Perspective
    It must be Comedy Monday here at ZH. Mandates require mask wearing, yet the caring “authorities” who force this upon you never mention safe practices for wearing or disposing of the face diaper. In medical environments, used masks are considered to be contaminated waste and require special handling and disposal. Yet in public you might even find them blowing down the street along with other trash.

    Many of the obedient citizens wear the same disposable f-diaper for days or longer, while rubbing them up and down over their mouths and noses umpteen times a day. Then they take them home to the family. That’s okay with our glorious leaders though right? Now suddenly, (after how many months?) some morons think the Control Virus can live on currency? And people apparently vote for some of these pathological idiots?

    HANGTHEOWL
    Exactly, I have been posting about that same issue for months now. If this was a real pandemic, the mask being a biohazard would have been addressed, but they are nothing but a prop in this hoax.

    zerohedge.com/geopolitical/coronavirus-survives-banknotes-4-weeks-study-finds#comment_stream

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