President-elect Joe Biden's transition plan for combating the COVID-19 pandemic is heavy on government intervention, but he has backed off of his campaign claims about federal mask mandates and business closures. For the moment, that also represents a step back from President Donald Trump's claims about the scope of executive power during the pandemic.
In regulatory and legal filings justifying its controversial eviction moratorium, the Trump administration has argued that existing public health laws give the executive branch sweeping powers to impose whatever regulations it deems necessary to combat the pandemic.
Many legal commentators have pointed out that this executive power grab could also be used to impose federal mask mandates, lockdowns, and pretty much any other policies reasonably related to fighting coronavirus.
Biden, who has already flip-flopped on whether he has the power to issue a nationwide masking requirement, could glom onto those arguments should he grow tired of trying to convince governors and mayors to mandate masks and individuals to wear them.
"The question is whether I have the legal authority as president to sign an executive order [mandating masks]. We think we do," Biden said in September, before walking that statement back at a CNN town hall later that month. In late October, he said he would mandate that people wear masks when traveling interstate and when in federal buildings.
In an August interview with ABC, the Democratic candidate likewise endorsed federally ordered lockdowns in the face of a worsening pandemic, saying: "I would shut it down. I would listen to the scientists."
The transition plan Biden released on Sunday, however, forgoes federal mandates on either subject.
In regards to masks, the president-elect says only that he would "call on" every American to wear them when around people outside their household. He also says he will try to persuade governors and local authorities to issue their own mask mandates.
It's a similar story with business closures.
"Social distancing is not a light switch. It is a dial," reads the transition website, which says the president-elect would have the Centers for Disease Control and Prevention (CDC) provide "evidence-based guidance for how to turn the dial up or down relative to the level of risk and degree of viral spread in a community."
That guidance would include recommendations for when to shutter businesses, how big gatherings can be, and when to issue "stay-at-home" restrictions—i.e. lockdowns. But his plan still leaves it up to state and local governments to implement those recommendations.
That Biden still sees business closures, gathering limits, and mask mandates as tools to fight the pandemic means his COVID-19 response plan is far from libertarian. His reliance on state and local officials to implement these policies does make it at least federalist, though none of this prevents him from adopting a more centralist stance on masks and lockdowns later on.
Powers claimed by the Trump administration during the pandemic might pave the way for Biden to do just that.
There is currently no law that explicitly authorizes the president to issue a mask mandate or implement the kind of stay-at-home orders and reopening plans that states have adopted. But many people have been arguing that a broad reading of the Public Health Services Act (PHSA)—which gives federal public health officials the power to issue regulations "reasonably necessary" to combat the interstate spread of disease—empowers the president to issue such rules.
"Many people" includes the Trump CDC, which claims that the PHSA gives it the authority to issue an eviction moratorium to mitigate the interstate spread of COVID-19. Facing legal challenges to the moratorium, the administration has argued that the PHSA gives it "maximum flexibility" to adopt whatever policies it deems necessary to fight the pandemic.
"I'm not being hyperbolic when I say that if [the CDC's] interpretation is accepted, it means the CDC can issue any of the same orders at all that any of the governors across the country have done," Luke Wake, an attorney with the Pacific Legal Foundation, told Reason last month. "Business closures, micromanaging the economy, what we can do in our private circles. That would all be under their purview." Wake's group is currently suing the Trump administration to overturn its eviction moratorium.
"If Trump can use this authority to impose a nationwide eviction moratorium, Joe Biden (or some other future president) could use it to impose a nationwide mask mandate, a nationwide lockdown, or just about any other restriction of any activity that could potentially reduce the spread of the flu, the common cold, or any other disease," wrote George Mason University law professor Ilya Somin at The Volokh Conspiracy in September.
Trump ran, in part, as the candidate of business reopenings, and he has rarely been shy about suggesting masks are unnecessary and ineffective. His decision not to issue a federal mask mandate or business closure, while claiming the power to issue an eviction moratorium, thus represents a policy decision, not a recognition of the limits on the president's power.
Biden's decision not to call for a federal mask mandate, even though he clearly believes such mandates are good policy, can plausibly be read as a more restrained view of executive authority. But should he decide to change course, his predecessor has given him all the legal arguments he'll need.
Rent Free is a weekly newsletter from Christian Britschgi on urbanism and the fight for less regulation, more housing, more property rights, and more freedom in America's cities.