The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In June, I wrote that a state mask mandate would be constitutional. Challenges based on the Due Process Clause of the 14th Amendment would run into Jacobson v. Massachusetts. Now, Vice President Biden has proposed that the federal government should require people to wear masks. It is unclear if he was referring to an act of Congress, or an executive order. I'll assume that he was referring to the former, rather than the latter. Could Congress enact a mask mandate?
I think a Due Process Challenge based on the Due Process Clause of the 5th Amendment would fail under Jacobson. But there is a far more potent line of attack: what enumerated power would allow Congress to require people to wear masks? Of course, this question brings back the debate in NFIB v. Sebelius. Could Congress make a person buy insurance to help promote the national health care system? The Supreme Court said no.
The power to regulate commerce presupposes the existence of commerce. Congress cannot use its Commerce Power to force people into economic activity. A person, who chooses not to wear a mask, is beyond the scope of commerce power. Moreover, I do not think it would be a proper exercise of federal power to compel someone to place something on their face. There is no tradition of such a law. Moreover, the states are ready and able to enforce social hygiene measures–even short of a mask mandate. I do not see the sort of collective action problems that (arguably) justified the ACA's individual mandate.
Perhaps Congress could simply impose a 1 penny tax on those who choose to go unmasked? So long as you pay the tax, nothing will happen to you. I'll wait to see the draft bill.
Update: James Phillips and John Yoo wrote about a federal mask mandate in the O.C. Register.