The Constitutionality of a Federal Mask Mandate

What enumerated power would allow Congress to require people to wear masks?


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.

NEXT: Ted Cruz, Laurence Tribe, and Tammy Duckworth

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  1. How can Congress do this?

    The way they always do - bribery.

    Just like the seat belt requirement.

    There's no federal law that you wear a seat belt - however the states enact seat belt laws so they can get a bite of that huge Transportation bill funding.

    1. This was my thought as well. Congress could pass a law impacting federal funds for (fill in the blank) if states did not have a mandatory mask requirement.

      Another relevant topic would be the drinking age. My understanding is that there is no law requiring 21 to drink. Instead it's a burden placed in federal transportation dollars.

      1. Agree. This thread is done in one.

        Seatbelts, speed limits, drinking age, etc. etc. are enforced by the federal government through the purse; it's so common a mechanism that I'm surprised Blackman didn't say anything about it.

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          Here’s what I do…..............► Cash Mony System

    2. Agree, the federal government could condition federal funds on a mask requirement, just as it does for seat belts and a drinking age.

      I think Professor Blackman is ignoring the many tools the federal government has to use expansive definitions of its enumerated powers to achieve things like this.

      And I think he is also ignoring the fact that when a politician calls for a federal mandate, he is calling for manipulation of the various federal powers to achieve the result — spending, interstate commerce, etc.

      It’s no different from objecting to people talkijg about “their” corporate assets when they are the sole shareholder of a company which is technocally a separate person and owns the assets. The technical separate personhood of the corporation occassionally imposes difficulties on their doing what they want, and they have to file paperwork to maintain the legal fiction of separate personhood. But as far as ordinary people’s everyday life is concerned its a legal fiction based on paperwork nobody but lawyers bothers to read.

      I think it’s a pretty decent analogy. The federal government’s enumerated powers are roughly as limiting in practice to what the federal government wants to do as the separate personhood of a solo corporation limits what its sole shareholder, officer, and director wants to do. Hire some lawyers, and you can almost always find a way to do it, or something that’s 99% of what you want. They are both pretty much legal fictions in practice.

      1. The mask mandate is just reinstituted discrimination. We already have anti-discrimination laws. So why wouldn't those laws apply to someone who chooses not to wear a mask because the whole thing is absurd? I'm ready to start suing these businesses for discrimination. Who's with me? Corporations don't have authority over other corporations. We are all equal under the law. So why are these businesses taking it upon themselves to enforce unconstitutional mask edicts? Why are they doing the government's dirty work for them? If the governor wants me to wear a mask then let him enforce it. But they can't because they are broke. They have to get the corporations to enforce it and the people are so stupid and pathetic it seems like suing the hell out of them would be like taking candy from a baby. Who's with me? we need to start sueing these corporations that are refusing service to other corporations. Unfortunately I am not optimistic. I have yet to find a lawyer with his testicles still attached.

    3. While Congress could certainly do that (bribe the states to pass a mask mandate law), that is not what Biden or his advocates have proposed. In one interview, Biden specifically said that he would push a mask mandate "from an executive standpoint". In other words, he (like Trump and Obama) thinks he can unilaterally change the country "with a pen and a phone".

    4. New Hampshire STILL doesn't have one. Not for over 18.
      And neither NH nor ME requires motorcycle helmets.

      Live Free or Die.

  2. I don't know why the US federal government can't even pretend to respect the principle of federalism. I know that state politicians aren't very good, or very legitimately accountable to their constituents, but still.

    Just impose a mask mandate on anyone crossing state lines for/by commerce, and leave the states to do the rest.

    1. Remember when people screamed for Trump to nationally shut down business by order rather than recommendation, and he refused. Then he said he could order them opened back up and the same folk screamed what kind of dictator do you think you are?

      Good times, good times.

      We do not want a national dictatorship. I speak of actual, real ones, not fevered disasterbation fantasies. Freedom and democracy collapse hisorically when the people vote emergency powers to a leader, who then never gives it up.

      It's such a solid rule of thumb to learn from history that George Lucas used it as his central theme for the three prequels in Star Wars, where the proto-emperor engineers an emergency so he can be given emergency powers.

      When it culminates with the actual vote and the emperor cackles with glee, Padme says, "So this is how liberty dies, with thunderous applause."

      Stop with cries for a national dictator, you fools*

      * "Fools" added by human history from experience in ancient Greece and Rome, 1930s Germany, Venezuela, Turkey, Russia more recently, and many others.

      1. Remember when people screamed for Trump to nationally shut down business by order rather than recommendation, and he refused.

        Actually, I don't.

        1. Ah, so it wasn't just me. I sometimes miss US news stories, but that one didn't sound familiar at all.

          1. I do remember that.

            Wearing masks is good, but the federal (as opposed to state) government has only limited power to require the wearing of masks.

            The relevant precedent foreclosing a blanket national mask mandate is United States v. Morrison, 529 U.S. 598 (2000), which said that activities can't be regulated under the Commerce Clause merely because they substantially impact the national economy, if they lack a qualitative relationship to interstate commerce, Domestic violence robs the economy of tens of billions of dollars per year, but Morrison said Congress can't regulate intra-state domestic violence merely because of that. Domestic violence lacks a substantial relationship to interstate commerce, in a qualitative sense (although quantitatively, it substantially affects the economy).

            Similarly, failure to wear masks lacks a sufficient qualitative relationship to interstate commerce, to make a blanket federal mask-wearing mandate constitutional, even though wearing masks saves lives and thus impacts the national economy.

            1. Did you post this in the wrong place?

              nationally shut down business is not about masks.

              1. Forget it. He's rolling.

  3. A penny tax? How unimaginative! Let us consider a $100/day capitation, with an exemption for people who either remain at home, remain in a non-public-facing business, or wear a mask in public. The Court has recognized that Congress has the power to carve out exemptions to taxes to encourage activities, so there should be little problem with this measure for raising revenue.

    1. How would you tax people for that? Buying insurance is easy to demonstrate. I get a tax form every year. How would I prove I wear a mask at all times?

    2. Hey, make it $23M -- and give Biden stumpage to promote this foolishness. Every time he opens his mouth, Trump goes up a couple points.

      The thing people are missing is that driving is a privilege, walking is a RIGHT -- it's how states can demand drivers licenses and license plates. They can't demand walking licenses and name tags.

      And the 14th Amendment meant something entirely different when _Jacobson_ was decided -- "separate but equal" was the law, Olmstead was the standard for wiretaps (no warrant needed) and no Miranda warnings needed. Abortion and sodomy were both felonies in most (all?) states. There was still imprisonment for debt back then, along with mandatory prayer in public schools.

      Our concept of individual rights has so changed over the past century that I do not consider Jacobson to still be good law.

      And tea got dumped into Boston Harbor for a lot less than this.

      1. Whether Ed considers something to be good law has about as much relevance to whether it is good law as whether Ed considers the Pittsburgh Pirates to be the 1960 World Series champions has to whether the Pirates are 1960 World Series champions.

      2. Our concept of individual rights has so changed over the past century that I do not consider Jacobson to still be good law.

        Awesome motivated anti-vaxxer reasoning.
        That's not how the law works, though.

  4. Suppose the federal government required wearing a mask while engaging in interstate commerce, in places of interstate commerce, or on federal territory or property.

    Given the broad definition of interstate commerce, this would include while shopping, driving a car, and much more. It wouldn’t cover everything. But it might cover 90% of people being indoors in public places.

    1. The hook they would make, would be that the item purchased must have crossed state lines...which is about everything these days. It would be akin to a certain civil rights law and certain gun control law.

    2. They are going to require a but plug to buy and sell because farts cause global warming. You are going to have to pull down your pants and moon the cashier at the gas station in order to buy a pack of cigarettes. The liberals have very selfishly taken us out of the age of reason, and put us into a bizarre nightmare that just won't end until they say so. They do this because they are children mentally. If you think there is a virus out to get you, then you are a paranoid schizophrenic with the brain of a five year old child. Due to all the poison in the air, water and media more than half the population are technically and literally insane. They are zombies. The walking dead. I am ready to start suing them every time they infringe on my rights.

  5. Anybody here ever heard of the Americans with Disabilities Act?
    Ever hear of any of the many diseases that restrict breathing capabilities?
    Does it matter that we are not talking actual medically effective masks, but rather "cloth face coverings" that vary from a single layer of cheesecloth to something as thick as a towel?
    Will there be penalties for wearing a "cloth face covering", but wearing it incorrectly? (you know, hanging around the neck, not over the nose, touching it at all, not replacing it after removing it to talk or unlock a phone, etc)
    Why only now for the Communist Chinese Virus?

    But to answer the question, if the commerce clause won't work, there is always the general welfare smokescreen.
    But with gun control, asset forfeiture, speech restrictions, and two week national emergencies going into their sixth month, does the constitution actually matter anymore anyway?

    1. Anybody here ever heard of the Americans with Disabilities Act?
      Ever hear of any of the many diseases that restrict breathing capabilities?
      Does it matter that we are not talking actual medically effective masks,

      Does it matter that this is all scientifically-illiterate FUD? I love how you've invented a magic material that isn't sufficient to keep in/out viruses, but is sufficient to keep out oxygen molecules.

      1. Talk about your scientific illiteracy, first of all masks inhibit the flow of air, and the volume of oxygen that is inhibited from entering decreases the amount available to the lungs at the same time it increases the CO2 that is reinhaled because it's exit is impeded.

        The volume of oxygen needed to breathe is vastly greater than the miniscule volume of virus needed to infect you, and masks are only really effective in preventing transmission, not reception of the virus.

        1. Your lungs, for obvious reasons, are quite overengineered for everyday exertions. Masks will not make a

          DMN said nothing about transmission versus reception.

          1. You should speak to people with lung-related disabilities before you opine on this topic. I was born with lung difficulties, spent almost a year in hospital often in oxygen tent, still have asthma decades later, get multiple respiratory infections every year, etc. I have great difficulty breathing in the recommended multi-layer masks and can not exert myself in them without taking the mask off regularly for "breathing" breaks. I got lightheaded and dizzy when I once tried to do moderate physical labor in a n95 mask. Others in my disability discussion group have worse lung/breathing disabilities than I do and had to get medical waivers to buy their groceries without a mask. They are still confronted by people who assume they are "anti-mask" nutjobs. Most made arrangements for reasonable accommodation with necessary service providers as described here:

  6. In actual reality, what is far more likely is a federal recommendation for nationwide mask usage, complete with the resources provided to states in support of state and local efforts.

  7. Judging by the peer-reviewed virology literature, this is pretexting to satisfy a lust for power: the literature says that enshrouded-RNA example (of which SARS-CoV-2 is one example, as are influenza, SARS-1, and MERS) are mildly sensitive to temperature, rather sensitive to humidity, and very sensitive to UV. This has been known since shortly after the SARS-1 (~2003) episode; this sensitivity for SARS-CoV-2 has been confirmed by Homeland Security's research department). One Mayo Clinic study found that humidifying schools to 48% decreased the influenza rate (as compared to the control group) by a factor of three. (Reducing the R0 by a factor of three changes SARS-CoV-2 from a growing pandemic to a shrinking one.)

    How much have we heard about humidifying public buildings, and using UV-A emitting light bulbs in them? Both of these are quite effective, completely-noninvasive measures that should have been suggested more than a decade ago; given the annual flu death rate, they would have already saved hundreds of thousands of lives if they had been established when the research came out.

    The fact that these scientifically-known measures have been ignored says that the politicians think it is far more important to engage in power-games than to actually save lives.

    1. Thanks for the info -
      One of the most important concepts I learned in economics was "marginal Cost / marginal benefit" (not to be confused with cost benefit). It is a similar concept to the law of diminishing returns.

      The mask mandate is a very inefficient method of controlling the spread of the virus with a high cost of enforcing compliance especially in areas where the risk of transmission is already close to zero.

      Far too much emphasis on controlling the spread where there is little to no spread and near zero emphasis on controlling the spread where the risk of transmission is moderate to high.

    2. In fairness, the changes to humidity that are harmful to that class of viruses also create areas in the building with conditions that are favorable to molds. Changing out all light bulbs to emit UV will incrementally increase incidences of skin cancer and cataracts.

      The fact that your proposals are "effective" does not mean they are without unintended consequences and the fact that they have not been implemented is not automatic evidence that politicians are evil. (They are but this isn't evidence of it.)

      Case in point. You don't need any politician to tell you to change out all your light bulbs. You could have done it voluntarily years ago. Despite that, I'll bet that you haven't made the changes that you're now calling for government to force on the rest of us.

      1. (1) The virology community has examined the humidity-level issue and concluded that 50% is a good compromise between viruses and molds. The threshold for mold problems seems to be about 60%...
        (2) I specified UV-A, which is still effective to kill the viruses; it's UV-B that's the cancer problem.

        1. I respectfully disagree. The virology community has examined the humidity-level issue and concluded that 50% is good for dealing with viruses. I am aware of no studies making a direct comparison to mold risk, however. Nor could the virology community alone do so easily. Molds are outside their expertise. It would require a different team to make that multi-disciplinary risk assessment.

          Regardless, all the studies to date have evaluated humidity issues under lab conditions. None to my knowledge have adequately considered the application of that rule to actual houses, office buildings and retail spaces with inconsistent HVAC systems. Aiming for 50% in the main spaces will inevitably result in local areas of higher humidity and therefore mold risk.

          re: UVA - I'll concede that cancer is mostly (though not exclusively) a UVB risk. Cataracts, however, are thought to be exacerbated by both.

          My point, though, is that those proposals have unintended consequences. The fact that they haven't been voluntarily adopted in the decade since that first virology research was published should make you pause to ask why before blithely calling for more government mandates.

          1. NOT.

            Humidity as a non-pharmaceutical intervention for influenza A

            Jennifer M. Reiman ,
            Biswadeep Das ,
            Gregory M. Sindberg,
            Mark D. Urban,
            Madeleine E. M. Hammerlund,
            Han B. Lee,
            Katie M. Spring,
            Jamie Lyman-Gingerich,
            Alex R. Generous,
            Tyler H. Koep,
            Kevin Ewing,
            Phil Lilja,
            Felicity T. Enders,
            Stephen C. Ekker,
            W. Charles Huskins,
            Hind J. Fadel,
            Chris Pierret
            [ view less ]


            Published: September 25, 2018

  8. Who enforces this law? We have already established that federal agents are bad and there are way too few of them anyway. States, counties, and municipalities already have clear precedent for not enforcing federal laws they don't like - immigration laws. So, this would just be more posturing by the politicians who want to look like they 'are doing something.'
    I know this is a forum for discussing laws, but diluting the respect for rule of law even further couldn't be good.

  9. Face masks only reduce the risk of transmission by approximately 10% if the primary source of transmission is via aerosols, and by approx 30-40% if the primary source of transmission is via droplets.

    Space (social distancing ) reduces the risk of transmission by 70%-80%. Similarly with time (reduction of time with contact with a potential carrier). Combined, Space and time reduce the risk by 95%. Using masks only provide a trivial amount of reduction in risk of transmission.

    1. Considering the negligible costs of masks can't you just put one on for the sake of your fellow Americans, and be content that 10% is greater than 0?

      1. Driving 5 miles per hour slower reduces traffic fatalities but adds negligible time to your daily commute so can't you just drive slower for the sake of your fellow Americans?

        Of course, once you've slowed down that first 5 mph, the rule still applies so next week, please drive another 5 mph slower. And drop another 5 mph the week after that. See how much safer we'll be?

        I reject your policy because it has no limiting principle. There are no "negligible" costs. There are costs that are justified by the benefits - some are large and must be justified by large benefits, some are small and can be justified by small benefits. None should blithely ignored as "negligible".

        1. And yet, there are still government-enforced speed limits.

          1. Of course there are. Because those speed limits are based on assessments of actual residual risk balanced against incremental costs. Neither side of the equation is written off as "negligible".

      2. "Considering the negligible costs of masks can’t you just put one on for the sake of your fellow Americans, and be content that 10% is greater than 0?"

        Again the concept of "marginal cost/marginal benefit" (not cost benefit) similar to the law of diminishing returns. In most environments where the mask is mandated, the reduction in the risk of transmission is trivial. Remember, the space and time are vastly more important factors in the reduction in the risk of transmission.

        1. Joe, it should not be that hard for you to understand that mask-supporting public health officials are saying the same thing you are. Basically:
          --Limit the number and duration of contacts with people outside your household.
          --Practice social distancing during those contacts.
          --As a backup, wear a mask.
          Of course contact minimization and social distancing are doing most of the work!

          I mean, imagine this advice on avoiding crime victimization:
          --Stay away from high-crime areas.
          --Be aware of your surroundings.
          --Carry an appropriate self-defense weapon.
          The weapon providing a tiny additional margin of safety. (Think of how many concealed carriers never draw.)

    2. Congress can require masks inside any business with a connection to interstate commerce. Indoor transmission is the big issue anyways. Given Gonzalez v Raich and other cases expanding the commerce clause, the courts should be ok with such a mandate. Enforcement is the bigger problem. And violent revolution from conspiracy theorists is the even bigger problem.

  10. its unrealistic to believe the spread of the virus can be contained. It is to deeply embedded into the general population to contain and eliminate the virus. The best that can be accomplished is to delay the spread, but stopping the spread is virtually impossible at this point.

    The far bigger long term problem is the failure of the ongoing need continually develop and improve the human immune system. The current public policy is seriously retarding the development of the human immune system.

    1. No, we do not need to let this thing just keep ravaging the country until it hits all of us. A focused, national effort to rein it in can work but it requires national leadership, of which Trump is incapable. If he were capable, and willing, he could turn around all but the most hardened “Get Sick and Die for Freedom Riders” and we could/would see some progress.

      1. "No, we do not need to let this thing just keep ravaging the country until it hits all of us. A focused, national effort to rein it in "

        do you really think any president - president trump, president obama or president biden - is more powerful than mother nature.

        Do you really think it is in the human race best interest to retard the development of the human immune system.

        1. I think you know nothing about what you’re talking about, that mankind has been beating back disease ever since we learned how to, and that with proper leadership, focus and resources we can do just about anything. And that last bit was standard fare right up to the point Trump started making America great again. (Actually, it began to get torn to shreds under the Rise of Newt but that’s just the origin story.)

          1. That may be about the most scientifically illiterate comment I've seen in the Reason threads. (And given some of the crazy-talk that comes up in every climate change discussion, that's saying a lot.)

            1. I’ve read your comments and your opinion on scientific literacy means nothing.

          2. "that mankind has been beating back disease ever since we learned how to"

            That includes the promotion of the continuing development of the human immune system.

        2. Yeah, the real tragedy of the scientific revolution was this whole medicine thing and how we stopped people from just dying from diseases if their immune system wasn't robust enough. I don't know why they even started amputating limbs to control gangrene before Fleming and his nefarious discovery of penicillin--if your body can't fight that shit off itself, Darwin has no need for you.

          This mask debate really does bring out the crazy in people.

      2. "but it requires national leadership, "

        The president cant directly supervise every federal employee. Someone being paid $250k+ such as Fauci et al , cdc directer should not need additional direction. In fact, if they cant lead, they shouldnt be in the position.

        1. Leadership != Supervision

        2. Presidential leadership is not supervision it is policy and messaging. Something President Trump is completely lacking. It doesn't take much to see the lack of message control. Policy is easy get the scientist together ask them what to do, get the governors together ask them what they need. Use FEMA, national guard to supply man power and to work with locals.

  11. The science around the efficacy and safety of prolonged mask use is equivocal, at best. This is a political decision meant to help open up the economy.


    1. To clarify - this is a public virtue signalling intended to give people confidence that start working and moving around the country. The implicit connection is that if you wear a mask, you are safe.

      1. No, it’s that if you wear a mask you and the people around you are safer.

      2. "this is a public virtue signalling intended to give people confidence that start working and moving around the country."

        Which probably wouldn't be necessary if they hadn't spent so much time button mashing in the panic button up front.

    2. Ah yes: "The (royal third-person) author is not an epidemiologist, biologist, or medical doctor, and none of this material should be viewed as medical, legal, or parental advice." Another computer science person quite certain that the actual experts in the field have it all wrong.

  12. Surely this is in the Constitution as part of the "Democrats really want this" clause, 3rd Penumbra on the right, emanating from section [rolls dice to generate a random number...]

  13. He said that every American should wear one and that every Governor should mandate it.

  14. Any thoughts on whether the holding in Jacobson v. Massachusetts would restrict Congress in enacting such a requirement?
    The Massachusetts Legislature authorized local agencies to impose health requirements and Cambridge took them up on it by requiring smallpox vaccination. SCOTUS upheld the validity of the local regulation.
    Thus it upheld a requirement tailored for a local public health condition. A general requirement by Congress would not take into account local conditions, ones that might not justify it. (I suppose a detailed tailoring of conditions justifying and then imposing it might be conceivable, but then it wouldn't be a general requirement.)
    Wouldn't such a situation then expand, and not be supported by the Jacobson holding?

  15. After complaining that everyone jumped to conclusions about Trump's recent Executive Orders without actually analyzing the text, here Blackman declares in advance that some future and theoretical mask mandate is Constitutionally suspect before the text is even drafted.

    1. The states are held to have broad "police" powers to legislate for the health, safety and morals of the community, whereas the federal government is supposed to have a limited number of "enumerated" powers. I would suggest that any kind of power that the federal government has not exercised in the past is, and should be, considered "constitutionally suspect" until it has been shown to be among those enumerated powers.

  16. Fairly simple.

    The same way the government can make it illegal to disclose some scientific fact that you have just discovered in your lab by considering it "born classified": National Defense. (Note I am not talking here about something you learned as a result of your governmental employment and executed an agreement to keep classified. "Born Classified" is a whole different world.)

    It is beyond dispute that a pandemic can adversely effect the National Defense. Therefore, the President, as Commander and Chief, has the absolute power to mandate the wear of masks as a measure necessary to ensure the National Defense.

    If you want to go with a more robust answer, Congress, without doubt, has the power to pass legislation to mandate the wear of masks. If they could mandate rationing in World War II, or blackouts, or create the Selective Service, it is beyond doubt that they could implement a parallel measure such as the wear of masks today in the name of National Defense.

    "We (Congress) find that the presence of any pandemic presents a Clear and Present danger to the National Defense, and therefore, under Article 1, Section 8 we direct the Department of Health and Human Services to implement measures mandating the wear of masks."

  17. A "No-Mask" tax? The Sixteenth Amendment specifically empowered Congress to levy income taxes, but did it extend Congress's taxing powers beyond that ? Can a "No-Mask" tax be characterized as any form of taxation authorized by Article I ?

  18. Drink your fluoridated water comrade!!!

  19. If you can enforce "no shoes, no shirt, no service" you can enforce wearing a mask. Where in the Constitution does it say you have to wear pants, yet we all do it. Why?

    1. Hardly a Federal law. It is up to each establishment to enforce no shirt, no shoes and as the sign says, they do it by no service!

  20. It is all a bad joke:
    I live in Wisconsin. Two weeks ago the Governor ordered his mask mandate. We should be covid free by now, but......
    Wisconsin sees 1,021 new cases as recent test positivity hits highest point since early May
    So much for masks.

    1. Because its for bacteria. How many of us have to tell all of you that we have proven over and over these masks don’t do anything. We’re not even allowed to wear them in healthcare. And they harm you by decreasing your O2 and increasing your CO2 which literally increases your likelihood of catching viral illnesses. This country is just so mindless; you’d think this was a zombie virus

  21. Taking a gander at the Federal statutes (USC title 18), I see crimes like homicide, extortion, false personation, etc. that have little to nothing to do with commerce nor any other enumerated power. And looking up the Crimes Act of 1790, it seems to be fairly clear that the right for the Federal government to create basic, every day laws was considered a non-enumerated but intended power by the first Congress and there's been no challenge to that subject of note in the whole while. The only limitation being, obviously, that the crime occur on Federal land, the criminal matter crosses state lines, or the matter involves foreign affairs. I think it's safe to say that the current pandemic is a matter that crosses state lines and affects our foreign policy and foreign relations.

    The argument that an enumerated power is necessary would say that either the people who wrote the Constitution were wrong, when they wrote it and we need to void out nearly all of the Federal codes that exist, or that this is just an argument that presupposes a reality that is completely adverse to history and the intent of the founders and pretends like we live in that universe.

    Beyond that...

    1) Public nudity laws have been supported as Constitutionally viable and those do force people to put a particular piece of clothing in a particular place - and for much less reason than face masks. Yes, that's always been at the state level but I would expect that if the Federal government did pass such a law, it would reference that ruling.
    2) Clear threats to the basic safety of the nation, like an invasion or secession, allow emergencies to be declared and for basic Constitutional protections and freedoms to be put aside. If Habeas Corpus has been put aside for a time, in the past, it's a hard argument to make that if you've successfully convinced a majority of Congress that a national emergency of similar scope as the Civil War was hitting the nation and needed that level of dramatic response, I don't see the Supreme Court telling Congress that they're wrong.
    4) The argument that the draft was legal, I believe, came from the argument that Congress is empowered to provide for the defense of the nation. This power was used to force people to wear a uniform and go over to fight in a revolution in Vietnam - a country that had zero capacity to raid our nation and posed no genuine threat to us. There's a better argument to be made that the country is in danger by the pandemic than that it was by Vietnam.
    5) The Commerce clause allows Congress to do things that affect our economy. The pandemic is affecting our economy. They can mandate masks just as easily as they can adjust our currency policy, if it's a matter of economics.

  22. "If you can enforce 'no shoes, no shirt, no service' you can enforce wearing a mask. Where in the Constitution does it say you have to wear pants, yet we all do it. Why?"

    No pants might run counter to public indecency laws, doncha think? Although, it's always amusing when the die-hard maskochists equate our (allegedly temporary) state mask mandates (supposedly for health reasons but which impede our own breathing and oxygen intake and suppress our immune systems) to us always having to cover our genitals in public and obey stop signs when driving.

    1. What a dumb apples to oranges argument: I bet you didn’t even had a basic biology course in high school.

      1. Did you actually read and comprehend the comment?

  23. I’m a nurse and I’ve said that a thousand times here. How the hell do any of you think you have the right to regulate someone’s oxygen intake for someone else’s “health?” FU I will fight you and you can come for me. Stupid stupid illogical fear mongering health tyranny. OH YES IT IS.

    1. I don't believe you're a nurse, because the idea that masks appreciably effect someone's oxygen intake is a biologically illiterate thing to say.

      So is the masks/bacteria thing you say above.

      1. Have to agree with you on the oxygen intake. People in the medical and other professions wear masks all day long. The mask will require you to breath deeper to over come the cloth resistance, but you are still taking in the same air with the same oxygen content, about 21% at SEL.
        Bacteria can be a problem if masks are not clean regularly. But the idea that mask are some big problem is fertilizer.

  24. I was top in my prep school class in HS biology. Your two comments in a row seem highly contradictory. My argument referenced the rather inane equivalence of being forced to barely breathe through masks to having to obey stop signs.

    1. My comment above to AprilJ.

      The subsequent Sarcastro comment has no working knowledge of OSHA strict standards for working conditions and mask oxygen levels availability. Sarcastro contends masks do not "appreciably" affect oxygen levels. Wow.

      1. Sarcastro also contends that masks don't harbor bacteria... It's as if we're in an alternate universe and one side just saying demonstrably untrue stuff makes it true.

      2. Checked OSHA site and did not see anything suggest masks affect O2 levels, perhaps you could enlighten us?

        1. [My response to Moderator4Ever has been in moderation for hours, so, just in case the links I provided were the problem, I'll repost a comment with the titles and websites, instead.]

          I also did a cursory look at OSHA, and all I found was the agency having changed or dropped mentions of requirements since “COVID.” Two months ago I could still find their rules for providing no less than 19.5% O2 for workers wearing masks and respirators.

          Elsewise, Google’s search algorithms appear to have contracted the terrible “Covid,” with its results skewed "pro mask" without showing any downside. There still are a few videos on BitChute (and maybe YouTube that haven’t been censored) of medical professionals warning about the health effects of mask caused decreased O2 and increased CO2 intake and bacterial build-up, but pay no attention, because they must be disinfo specialists and quacks, according to Snopes, FactCheck, Fauci, and many at this site.

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            1. Noor's post is less scientifically illiterate and more sane than Miss Greenparker's.

  25. So, now I'm a believer.  Everyone here and their children should wear their N95 masks all day long and not get within six feet of anyone at work, school, or home (27 feet if you sneeze.)   Wear them while shopping, walking in the park, or when at a government permitted group event.  Remember not to throw any parties or to attempt to attend church or synagogue services, masked or no. 

    To be extra safe, you might go ahead and wear your masks when doing moderate exercise, since “you are still taking in the same air with the same oxygen content, about 21% at SEL,” according to Moderation4Ever.  A few days ago a friend and I saw a 70- year-old woman slowly jogging in a mask in a hot, humid Houston August.  There was a report last week of two Chinese schoolboys having died from running with their masks on in separate incidents.  No doubt they were going too fast, so pace yourselves.

    Recently, there is technocrat talk of good citizens also needing to wear goggles and face shields everywhere, because "infection with COVID-19 is nearly three times more likely without eye protection than with it.”  Three times more likely, so why wouldn't you not wear them for everyone's sake, and why have our Governors and Mayors not mandated them, yet? Government says we cannot be a free-breathing people, anymore, and likely for a long time, because their experts have declared all of us potential infectors, everywhere and at all times. Why should we be a free-seeing people, as well?

    One would think that, unless evening hours or physical intimacy are somehow not implicated in this flu transmission, goggles and face shields would be a pandemic imperative for when watching TV with the family and, certainly, in a conjugal bed.  So far, but it's early in the game, the CDC only tiptoes around the issue, perhaps out of delicacy: “Some people may choose to use a face shield when sustained close contact with other people is expected."  Still, three times more likely transmission without one!

    Don’t forget to use a hand sanitizer everywhere you go and wipe down your steering wheels and doorknobs upon each touch, and, of course, your mail each day.  Alternatively, you could wear disposable gloves and, as so many Covid careful citizens do, litter parking lots with them, along with your empty sanitizer bottles and dirty N95 masks. Remember, those masks are not dirty from bacteria on the face side, which would be a “biologically illiterate thing to say,” according to Sarcastro, but they're potentially contaminated on the outside from killer Covid in the air and shouldn't be touched after use.

    Lastly, always do what Government, Google, and Global agencies tell us to do for our own and the common good.  Listen everyday for the updates from corporate and social media.  Here are some recent ones:

    Forced Isolation May Be the Only Way to Stop Resurgence of Virus, at msn (dot)com

    Dr. Fauci:  Wear Goggles, Eye Shields to Prevent Spread at abcnews (dot)com. go

    Worst Face Masks for Covid19:  Bandanas, Neck Gaiters More Harmful Than No Mask at studyfinds (dot)org

    1. Don't tell me what to do idiot. You are a paranoid schizophrenic with the brain of a five year old. How dare you infringe on my rights? Who the hell do you think you are? Just because you have some fantasy going on in your 5 year old brain you want to project that on to the whole world? That's not the way this works and you are spreading fighting words. If you walking around looking for a fight then you better be prepared. I don't think you are. I think you are someone who has watched too much tv and your brain is cooked.

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