N.Y. Times: Biden's advisers "concluded that he does not have the legal authority to impose" a nationwide mask mandate but can "require them on 'all interstate transportation.'"

It is unclear if this mandate would apply to personal vehicles traveling on public interstate highways.


Earlier today, I blogged about the Washington Post's preview of the Biden Administration's executive action plan. Today, the Times adds some more details. Specifically, we learn how the Biden Administration will pursue a mask mandate.

While Mr. Biden would like to see a national mask mandate, his advisers have concluded that he does not have the legal authority to impose one. So he will try to increase mask wearing in other ways. He has already said that, as president, he would require masks on all federal property, an executive order that could have wide reach and is likely to come in the first hours or days of his presidency.

In addition to mandating masks in federal buildings, Mr. Biden has said he would require them on "all interstate transportation."

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.

In October, 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?

The CDC's proposal was more narrow than Jack's proposal, 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.

I will wait and see the specifics of the Biden proposal.

NEXT: Today in Supreme Court History: November 8, 1994

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  1. Is the non existent US Highway Patrol going to enforce this “mandate”?

    1. No more than the speed limit or seat belt laws.

      1. Those are state LAWS, albeit passed under the threat of a cut in Federal spending. But Trump tried this stunt with sanctuary cities and the courts struck it down, hence there is precedent that it will take an act of congress to do this.

        On a more practical note, over half the county is incensed because they clearly see this election having been STOLEN and maybe President Bite Me will be bright enough not to further exacerbate things….

        Remember that this is going to have the same effect as the assassination of JFK, except that Trump is not going away. He’ll be on talk radio, and holding massive protest rallies, possibly in DC. Are the Dems really that stupid?

        1. A few inconsequential kooks are lathered up about unsupported allegations of fraud. No election was stolen, save perhaps in the fevered dreams of uneducated right-wingers.

          If Trump’s crack legal team — Giuliani, Bondi, et al — provide credible evidence and persuasive arguments, any legitimate claim should be investigated. But the likelihood that Biden would be denied 270 Electoral College delegates is remote from the most favorable perspective. So far, this is a vainglorious, lying, childish blowhard lathering a dismal army of gullible. disaffected, obsolete losers.

          Produce substantive arguments and credible evidence or stand aside as your betters remove those tiny, clinger fingers from the levers of executive authority.

        2. “over half the county”

          Well, that might be accurate in some counties.

    2. Will BIPOC people be exempted from a mask mandate to avoid giving white supremacist cops an opportunity to oppress minorities?

      1. No. They don’t care about that. Sorry oppressed minorities, it’s the same as gun laws. Someone else is the bogeyman, but you’ll be the ones punished. You’re always the ones most harmed by the authorities you keep voting for.

    3. Even Democrats, Greens, and Independents are going to be outraged at a requirement that people driving in their private vehicles, whether alone, with their family, or acquaintances be required to wear masks.

      It’s patently ridiculous, and even Joe Biden isn’t that stupid.

      1. I wish I had your confidence in Bidens intellect….such as it is

        1. Not so long ago a lot of the Trumpists here were citing his win in 2016 as evidence of his genius.

          But somehow Biden’s win proves nothing to them.

          1. Trump did it while being outspent 2-1, with 75% of the media against him.

            Biden is presumed to have done it, (The counting isn’t over.) while outspending Trump, and with 95% of the media in the tank for him.

            But I will grant that somebody somewhere demonstrated some brilliance in arranging that.

            1. “…with 75% of the media against him.”

              In 2020 the media clearly favored Biden, but in 2016 they were all too happy to breathlessly and credulously report every minute detail of Hillary’s email nothingburger while underreporting Trump’s weekly scandals. They did so largely because they assumed Hillary would win easily.

              The 2016 Trump campaign deserves credit for leveraging the media’s prejudices and assumptions, but don’t kid yourself into thinking the media’s coverage of that campaign was anything but beneficial to Trump.

              1. The media’s coverage was beneficial to Trump winning the primary in 2016. The general? …No. The media was firmly against Trump in 2016, but made a pretense of impartiality.

                In 2020, the Media gave up any pretense of impartiality.

      2. No, the laws won’t “apply” to them…

  2. Congress may be empowered to act on interstate transportation. The President needs an act of congress to carry out. Which law authorizes mask mandates?

    I look forward to any regulatory mask mandate being subject to the Administrative Procedure Act.

    1. Planes already require masks, same with buses and trains. Federal property is clearly under the control of the President. There is really not much in this to challenge.

      1. Where’s the court decision that affirms their authority to enforce that requirement?

      2. Translation: I like being a slave as long as I’m Biden’s slave.

        1. How do you stand up to the tyranny of stop signs, center lines, red lights, and no-parking-in-intersections signs, mulched?

          Or are you just another all-talk, faux libertarian, right-wing pansy?

          1. Wash the catpiss reek out of your breeks and show at least personal proximal attention before spending time even rendering an opinion about the cleaner world that exists six inches from your person. Beg for laundry change before internet access money, eta.

          2. Hi, Artie. A German town removed its traffic lights, and ended its crashes. Government does nothing well, including, setting rules.

            I had to flag your mean spirited and hurtful, anti-LGBT remark. There is no home for hate here.

            1. Do right-wing incels — to whom “pansy” refers — now claim to be part of the LGBTQ community?

              1. I belong to the community of LGBTIFGERASWRVBNKOP.

      3. Molly, planes are sovereign entities like ships, where the captain has extra authority. Arguably trains and buses are as well.

        But private vehicles are PRIVATE.

        1. planes are sovereign entities

          Ha! I missed this guy.

          1. These guys claim victory while they are removed from the premises — spouting and pouting, failing and flailing, complaining about how they will be vindicated — by their betters.

            Disaffected incels and bigoted right-wing misfits are among my favorite culture war casualties.

    2. You took the words out of my mouth, err, keyboard. First question is what statute authorizes this. Then you get to constitutionality. The good professor has the issues backwards.

      1. I agree there’s an issue of statutory authority to be considered (which is derivative of constitutional issues of power), but I don’t think that necessarily has to be considered first.

    3. Contrary to the article, there is no requirement or law making people wear masks on an aircraft when the cabin depressurizes.

      There is a requirement (for type certification of the aircraft) that the masks being present.

      And it is not unlawful to remove your seatbelt after the cabin crew checks – the requirement is that the aircraft not take off without passengers being belted: The airline would be legally liable and would likely ban the idiot from flying again…Likewise the safety briefing: It is required to be given, but there is no requirement that anyone pay attention to it and most don’t seem to.

      1. “Contrary to the article, there is no requirement or law making people wear masks on an aircraft when the cabin depressurizes.”

        Sounds like a job for Pres.-elect Biden, after he succeeds Pres.-eject Trump.

  3. Time for another round of “Let’s redifine ‘interstate’!” Today’s host, the Biden Administration, with special returning guests SCOTUS and Congress.

  4. Let’s point out the notion of a president (or president-elect) acknowledging the limits of federal power. You may not like Biden, but admit he is going about this right.

    1. Promising to do a thing and then later looking up whether he has the authority to do it is the right order?

      1. Given for almost 4 years we saw them knowing they don’t have the authority, yet doing it anyhow, this is a step in the right direction.

        1. So you hand out praise for dumb overreaching promises to trick uneducated voters and then defend it when he breaks the promise instead of attempting to make good on it.

          1. Biden did not promise an all encompassing federal mask mandate. From what I can tell what he proposed before the election is quite similar to what he is proposing now. The notion of a national mask mandate seems to be from the imagination of the right wingers.

            1. The real praiseworthy thing to do would have been to tell people to stop treating masks like a ritual totem and start thinking like modern people.

              They may help in crowds and a little bit indoors, when worn by adults. They do nothing when you’re alone in your car or when you’re outdoors and there are no crowds. Children are not significantly affected by Covid — even less than the flu — and need not take any special precautions beyond what they’d normally do for flu.

              1. Masks are shown to significantly reduce the chance of infection. Of course they do nothing when you are alone, but you should still wear them outside when there are others around. Children are rarely made sick by covid, but they can catch it and spread it, so children taking precautions is important.

                1. Punishing children to adjust risks for 90-year-olds is cruel, especially when children have not been shown to be a significant disease vector for Covid.

                  1. Children have been shown to be significant vectors.

                    1. Current studies are showing that children do spread corona at a similar rate (give or take a bit) as adults. That would make them a significant vector.

                    2. I guess anyone can say anything.

                      It’s still cruel to punish children to modulate risk factors for 90-year-olds.

                    3. You are a disaffected blowhard, Ben. Stand aside and let the adults handle this, or stay where you are and have reason and progress shoved down your bigoted, backward throat.

                      Of course, you are accustomed to swallowing what better Americans dish out, having experienced the liberal-libertarian mainstream shaping our national progress against your preferences for the entirety of your lifetime.

                      Don’t like to wear a mask? Stay home. Watch some Fox. Fondle your guns. Dream about militia adventures. Sneer at educated, credentialed people. Maybe pray on it all a bit.

                    4. Ben-, this AK thing cannot be reliably said to perform the basic hygienic requirements the life entails. It’s opinions in content are similar to it’s personal horrific catpiss stench; perhaps in a situation to that of a leper’s, it forgets to perform a perfunctory cleanliness check because of numbness of senses.

                    5. JSinAZ —

                      you’re about as relevant in the context of America’s future as a token movement conservative professor is on the faculty of a strong mainstream law school.

                      Enjoy that inconsequential, lonely life at the fringe.

                    6. It’s still cruel to punish children..

                      Trumpists have no grounds to talk about the evils of punishing children. They are happy to do so when it serves their bigotry.

                    7. Congrats to bernard11 for standing up to me because I don’t want to see children punished.

                      The people who hurt children to optimize their public health spreadsheets numbers appreciate it.

                2. “Children are rarely made sick by covid, but they can catch it and spread it, so children taking precautions is important.”

                  Only partly true – Kids dont get sick from covid because their bodies fight the disease and keep covid in check such that the virus doesnt build up in their bodies. Similar to Asymptomatic individuals.

                  While both can theoretically transmit the virus, the transmission from both groups are significantly less because the viral load is so much lower.

                  1. Research is showing the the viral loads of children is not significantly lower and children may shed virus for longer then adults. The main point is that children still need to wear masks and social distance.

                    1. You haven’t been paying attention. Biden did next to nothing to win the election. Maybe I missed something. But I don’t recall any actions, speaches, postitions, anything to point to that would credit Biden with winning the election.
                      I saw the dnc/media propaganda machine drag a bumbling oaf over the finish line, by rigging the election results. I remember Joe Biden bragging about having the most “extensive and inclusive voter fraud organization in history.”
                      I remember the tech elites censuring anything that shed light on Bidens corruption over the decades of public grifting.

                    2. I dont know why my post from different article landed here.

                      Molly, what is your goal. What should the goal be? Children and those under 60 that have no health concerns, are at less risk than the annual flu. If the goal is to protect the elderly and those with health risks, mitigation needs to focus on those people, not the other 98%of the population.

                    3. The research showing viral loads in children being similar to adults is dubious.

                      Kids not getting sick contradicts the research

                3. Molly comment – “Masks are shown to significantly reduce the chance of infection. ”

                  In the lab and controlled environments, your statement is true. However, when comparing countries and regions, the Infection rate is almost unaffected by the level of compliance with social distancing / lockdowns and mask wearing. compare and contrast the IR with the various countries in europe (since late summer) then compare and contrast the level of mask wearing. The trajectory of the IR is very poorly correlated with the level of mask wearing.

                  1. Joe, Google: “Kansas KU study”

                    1. Kansas institute for policy and social research –

                      A) KU just sent me the raw data. Using the raw data with the appropriate adjustment for population, the delta since july 1 is 11% . The delta since August 1st is 13% .

                      it is certainly not the 50% to 61% cited in the study.

                      B) the next article claims the US is at the start of the third wave. However, only in a few areas of the US has there been a 2nd wave.
                      The US has had 3 separate 1st waves but there certainly hasnt been a 3rd wave.

                      Dont put a lot of credibility into this study.

                4. Molly, there are documented cases of masks causing MVAs.

                5. Evidence of transmission outdoors does not support your assertion about wearing masks out of doors. Ben is right on the science, here.

                6. This statement is false.
                  N95 and better masks, yes, but that’s not what *any* location has mandated or even recommended. The cloth face-diapers you have been wearing have zero statistical impact on the spread of a coronavirus.

                  This has been repeatedly proven, by hundreds of studies (and confirmed for COVID-19). The CDC, NIH, and Lancet have all published metastudies reviewing – and confirming – the lack of usefulness for thin cloth masks.

                  Repeating your false faith does make it true. Cloth masks have no measurable effect on the spread of the disease. That is a scientific fact.

              2. It will be a hazardous situation on the road if a car driver who wears prescription eyeglasses is mandated to wear a mask with lenses getting fogged up.

        2. 4 years? It’s rather longer than that….

      2. I agree that some of the messaging—the ad below, for instance—implies that Biden was interested in a broader mandate. But it does appear that he’s been acknowledging the limits of presidential authority and limiting his actual proposal as described in the post for at least a month.


      3. Seems better than doing it whether or not he has the authority.

    2. Let’s point out the difference between theory and practice. In theory, there are limits to federal authority. In practice, not so much.

    3. Absolutely. Obama also knew the limits of federal authority since he was formally trained as a constitution lawyer instead of just a game show host. #DumpDrumpf

    4. Molly, Can you really explain the science behind requiring someone to wear a mask while driving alone in her car on any highway.

      Biden is going nowhere with respect to real control of corona virus with such an expansive order with no basis in science or engineering or good sense

      1. Can you really explain the science behind requiring someone to wear a mask while driving alone in her car on any highway.

        I don’t think anyone is really going to require that. It’s an overly lawyerly reading of “all interstate transportation.”

        1. Berndard,
          The statement that I read was “all interstate instrumentalities at all times.”
          Hard to call driving on an interstate or US highway or even state highways with on-ramps to an interstate highwayas “an over lawyerly interpretation.
          How about issuing sensible mandates instead of ones with clear aspects that you don’t intend or wish to enforce.

          1. I agree greater clarity would be nice, but I also doubt Biden is going to include private cars in any sort of order.

            If he does I’ll gladly criticize him for it.

            1. Just admit that Biden was lying to gain support from low information voters. We all know thats what his intention was.

            2. If he’s not going to include private cars, what is he going to include that isn’t already covered?

    5. The man has served in congress for 47 years, Vice President for 8 years, has a law degree. I’m supposed to believe this is a superior choice to a non- lawyer, non-politician, but he has never sussed out his own position on limits of the executive branch of government. Over 50 years to understand a very simple concept, and Biden is running off at the mouth exactly like President Trump is constantly criticized for.

      Biden isn’t even the President Elect, and the raging double standard is already the norm for Biden.

      1. Joseph R. Biden is President-elect, you bigoted rube. Your rejection of that point would be just as persuasive and consequential as an assertion that the Earth is a few thousand years old, that storks deliver babies, that Biblical creationism is anything other than childish fiction, or that the moon is made of green cheese.

        1. By no constitutional measure is Biden President Elect. Media is not the final arbiter.
          January 6th, 2021, the Senate president officially certifies the selection of the president-elect and vice president-elect.

          That’s the standard I use. Go ahead and explain your worship dogma, that is counter to the Actions of the United States Senate.

          1. Similarly, Democrats may have won 67 seats in the Senate this time around. And who is to count out Kanye West, whose concession speech not only were the ramblings of a lunatic but also have no legal effect if he is certified as next president by the relevant lawful authorities? Gov. Hogan has reported he voted for Ronald Reagan, so his corpse is still in the running, too, by your standards.

            Deluded, belligerently ignorant yahoos are among my favorite culture war casualties — and constitute a primary pillar of of the Republican-conservative electoral coalition.

          2. Yes, I’m sure that’s the standard you used when Trump was elected, too. You were probably pretty upset, then, when you heard about how Trump’s advisers were promising Putin that they’d pull back Obama’s sanctions. Trump wasn’t even president-elect, then!

            1. Their cause is paltry and their character ugly, but at some point kicking around these Volokh-loving goobers becomes unseemly, perhaps even cruel, piling-on.

              I’m not there yet. Not even close.

              Anyone else?

  5. Also, lets point out that mask mandates from the government will not help much. What will help is the President his staff setting a good example and slowly convincing the American people that masks are an easy and effective part of the path to getting back to normal. The mask mandates that private businesses are already doing is also more important then what the feds will mandate.

    Maybe now we can stop politicizing coivd and actual try to get it under control.

    1. Gotta keep the believers panicked and performing rituals to ward off the bogeyman though.

      Why did you politicize Covid to begin with?

      1. I dare say by late January 2021 the COVID – 19 mandate will just about gone. But it sure will be an interesting time for the next few months.

        1. Their dream finally came true and they got the opportunity to criminalize unauthorized breathing. You really think they’ll give that up?

    2. I was promised a 3 week shut down to flatten the curve was the ultimate answer.

      That was a lie from the beginning. What was not a lie was the fact that the lock down would not save lives, only flatten the curve to allow medical infrastructure the time to absorb the sick.
      The fact is, the virus is going to virus. Protect the vulnerable. Those with no underlying co-morbidities can carry on with life. Some will get sick. 99.9+% will fully recover.
      Over 87% of covid related fatalities(die with covid, not from covid) are in long term care facilities. Where mask wearing is 100% mandatory. By all means bet your life on a mask. Its working wonders in nursing home.

    3. “President his staff setting a good example and slowly convincing the American people”
      That is more like it.

  6. Great job electing a corrupt doofus who thinks mask wearing in a fucking car is going to solve anything.

    1. They know it doesn’t solve anything. They prefer to exercise power especially when there’s no justification for it. To show people like you who your masters are.

      1. You will comply, Ben.

        With the preferences of better citizens.

        As usual.

        You get to whimper about it as much as you please, though!

    2. The corrupt doofus seems to have lost.

      1. Long live the new corrupt doofus!

  7. Biden may not have the authority to issue a mask mandate but he could have the government agencies that hand out money to the states to withhold that money if they don’t have a mandate. Sort of like what they did in the 1970s when the government instituted a 55 mph speed limit. A state that did not have that limit did not receive funds that it would have if it had instituted the 55 speed limit.

    1. Suggested reading, there have been numerous posts right here on the Conspiracy discussing the federal government withholding money in order to punish sanctuary cities and states. Any funding withheld must be related to the cause at hand, i.e. they can’t withhold highway funds because a state or city didn’t require masks while shopping. Etc.

    2. See “sanctuary cities”

  8. Masks mandates have been followed by record breaking surges in infection.

    1. That will, of course, be a problem, since the real reason for the masks was always political, and never really scientific or medical. And continues to be, to this day, since there are no exceptions for those who had the coronavirus, overcame it, and are thus of little, if any, danger to the public, if they don’t wear masks.

      1. Can you cite any evidence that people who have recovered from Covid cannot transmit it to others? There are some arguable points to be made against mask mandates, but this certainly isn’t one.

        1. Tens of millions of people have been infected with Covid, but the number of reinfections is vanishingly small.

    2. DB’s comment – “Masks mandates have been followed by record breaking surges in infection.”

      A) there are several charts showing when the mask mandates & lockdowns have been implemented in relation to the stage / rates of infection in the various states & cities/counties. They all show little to no correlation to the trajectory of the IR in various regions and/or states.

      The best example is the fall surge in infections in europe where nearly all the countries remain under modified lockdowns and mask mandates.
      Another good example is the mask mandates in the most of the large cities in the southern states in early march. The IR remained flat until June.

      B. there is a strong correlation with the IR in various regions of the world primarily by latitude which matches the Historical record of the IR for most all other influenza viruses.
      For example the surge in IR is almost always in the fall in the Northern latitude european countries
      The surge in IR is almost always late spring/early summer in the the southern US states
      Mid winter for the northern US states.

      In summary, Mother nature has much bigger effect on the IR than any attempts by humans to control the virus.

      1. So right now, it’s mid-winter in the upper Mid-West, but summer in New England?

        I thought virus minimizing had gone out of style as the fatality count passed 200,000. What is it about the Biden victory that brought it back?

  9. The thing that I think is missed here, is that there is a big difference between what the federal government can Constitutionally do, and what the President can do on his own. One big problem here is that his power has been circumcised by legislation over the years. In particular, the APA limits what can be used against people and organizations outside the government. EOs, etc, are applicable within the federal government, but if the Executive wants to apply them against most anyone else, they need to go through the usual Notice and Comment process. And this takes months, and by then, a masking requirement is likely to be moot, and thus fail a rational basis test.

    1. Constitution? What Constitution?
      That old rag that says the right to keep and bear arms “shall not be infringed”?
      The old white man’s musings that sometimes provide cover for judicial fiats like taking property without even a charge, let alone a conviction?
      That one?
      How could that possible prevent a common sense interstate commerce mandate about the general welfare?

      1. Let us not forget that the Constitution was written by white supremacists living on stolen land. The general will of the people as embodied by the Democrat party should be leading the political discussion in this country, not the Constitution.

  10. Presumably if the administration enacts such an order they will need to define “mask”. Would a face covering made of 1 layer of cheesecloth count? Chiffon? On reddit I read a teacher complaining that a parent wore an obviously ineffectual lace mask. waiting to read rules stating the minimum number of layers, thread count (if any) materials or tests we do to figure out if an item qualifies as a mask!

    1. Funny you should ask.
      My Wife did in fact make me a “cloth face covering” of a single layer of cheesecloth. It allows me to survive for 15 to 20 minutes before my blood O2 levels drop too far, so that I can get groceries without being lynched. And it is no more or less effective than a double layer of turkish toweling. The Communist Chinese Virus, if present, will sail right through it and any other “cloth face covering” without even noticing.
      No one has yet questioned me about it.
      I hope Pres. Biden (assuming that pesky bookkeeping issue is resolved) will remember that his party also passed the Americans with Disabilities Act, and provide for the portion of the serfs with one or more respiratory issues.

      1. Do the bandanna-bandit thing.
        As long as it drapes in front of your face, it satisfies the Faithful from the Church of Masks, even though it has absolutely no effect on disease spread because it isn’t airtight.

        1. Cheese cloth is much lighter weight than a normal bandana. If I end up required to wear a mask when I am the only driver in the car and cheese cloth is allowed I will make some sort of cheesecloth mask to hang in the car. I have a sewing machine. This is not difficult.

          I don’t mind wearing them in stores or other public places. But in the car by myself is ridiculous. Wearing a mask in the car with my husband is ridiculous.

          1. Alone or not, it will be dangerous to wear a mask if your driving with eyeglasses on, and they get fogged up.

            1. typo: you’re not your…

  11. So many scholars, lawyers, journalists, 2020 elite intelligentsia political completely distracted by political pronouncements intended to distract the public. Today, mask mandate to demonstrate “ACTION!” Tomorrow, new mandate to demonstrate “MORE ACTION!”

  12. What the new President could do that would be on firmer constitutional ground is establish a mask mandate in all federal jurisdictions, like federal office buildings and national parks, etc. Currently there is no such federal mandate.

    1. And send the US Marshals to arrest maskless campers in the parks?

      What punishment do you support for maskless national park visitors? More than a year in prison? Less? Please let us know.

    2. How come you cant name a single federal building the does not require a mask?

  13. Biden might look across town and decide not to reach too far, lest the Supreme Court rein in the Commerce Clause. Gonzales v. Raich was a 6-3 liberal-conservative vote to keep the Commerce Clause in its late 20th century omnipotent form. Times have changed.

  14. So all those truckers driving by themselves will be masked. Should work.

  15. Science, agreed? Compare with coming mask mandate.

    “The purpose of this review is to offer healthcare providers with examples of how to respond to patient questions about masks in a way that encourages responsible decision-making. We conclude, based on the evidence showing a benefit for cloth masks and the recent reports supporting a role for aerosols in the transmission of SARS-CoV-2, that cloth masks will be effective when used correctly. We further assert that stronger public messaging surrounding cloth masks in the community setting is needed, and should specify that 2-3 layer, fitted face masks be worn at all times in public as another layer of protection in addition to social distancing, not just when social distancing cannot be maintained.”
    Martinez JA, Miller RH, Martinez RA. Patient Questions Surrounding Mask Use for Prevention of COVID-19 and Physician Answers from an Evidence-Based Perspective: a Narrative Review. J Gen Intern Med. 2020 Nov 3:1–6. doi: 10.1007/s11606-020-06324-w. Epub ahead of print. PMID: 33145693; PMCID: PMC7609362.

    1. Huh. That abstract is really deceptive. It isn’t trying to advance knowledge at all, but it purely an activist piece.
      That’s obvious, because it isn’t a study at all. It’s a question and ‘answer’ that regularly conflates different mask types, and compares standard behaviors to non-standard – for example, they chose to use a measure of particulate distribution from a study that simulated sneezing by using a nozzle that sprayed into a chamber from one end. Never mind that people do not sneeze by turning their nostrils horizontal to the ground and directed completely away from the body.

      Instead of this deceptive garbage, perhaps everyone should try reading some scientific studies about the use of masks, both in labs and in the real world. Here’s two recent ones by reputable organizations to start with.

      “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.

  16. “require them on ‘all interstate transportation.'”


  17. Or maybe just mandate masks where they clearly can by executive order on Government property and facilities and then urge the States to issue mandates and name and shame the ones that don’t. You know everything doesn’t have to be a test of power. Sometimes just being sensible and urging others to be sensible can be enough.

  18. It is going to be hilarious to see the shucking and jiving the media does to make it sound like worthless public policy such as a “national mask mandate” magically lower infection rates.

  19. If Trump truly had this desire to be an American dictator, to control more of America, then why didn’t he use the pandemic crisis to do so? We know that historically dictators have used crises – real or manufactured ones – in order to consolidate power, to silence their opponents, to expand their reach over the country. Think of the obvious example of the Reichstag Fire. Or lesser example of economic crises or natural disasters that were used by authoritarians to gather more power.
    Here we have the supposed authoritarian Trump simply not only not wanting to consolidate power but wanting to leave many decisions up to governors. That is not what a typical dictator-wannabe would do.
    The mask mandate is not authoritarianism; but it is an example (there will be more) of a how a more liberal and statist oriented ideology will respond to a crisis. Their motives may be good; but we know where that can lead.

    1. Wannabe dictators use the crisis to get emergency powers that they then never give up. It’s a lot more than Nazi Germany. Ancient Rome and Greece went down this path, as did Venezuela, Russia, and Turkey more recently. The Philipines’ anti-drug fits this mold, too.

      It’s such a well-trodden and well-known path, George Lucas used it as the political intrique for the sequels. “The Phantom Menace” is exactly that — the ginned up emergency that the Chancellor uses to become leader, and then get the Galactic Senate to issue him emergency powers.

      1. Prequels. The sequels had no known consistent intrigue.

      2. Yes, the Reichstag fire is the most obvious example (even though it was the then President Hindenburg who was given the powers and not Hitler) but Trump is not one of these examples. Even though he supposedly has this powerful authoritarian streak. In fact, the complaint by the same people who called him a dictator wannabe is that he didn’t do enough in response to the virus, didn’t use the powers of the presidency to address the crisis.
        Trump is (was) a very strange person. His abuses were really conman, grifter type acts. He had no ideology, no larger goal to take over America. It’s all about him, his ego, and not anything else. He was certainly a danger but the real danger comes from people with ideologies that are larger than of individual self-interest.
        As the saying goes, the desire to save the world is often a cover for those who wish to rule it. Trump didn’t really want to “save” America; he wanted to assuage his bizarre ego. Good riddance but the threat to democracy hasn’t disappeared with him.

  20. If the mask I’m required to wear while driving my car causes my glasses to fog up, and I get into an accident, is the Federal Government responsible?

  21. Lord Josh you have an axe to grind and an agenda.. I signed on here to avoid all that just hear legal opinion. Maybe you need your own blog

    1. Just remember that this guy is the future of conservative legal academia . . . and be thankful. A great way to succeed is to lack competition. and at this point the clingers are just mailing it in with respect to relevance at our strongest research and teaching institutions.

  22. So, the idea that Presidents have serious limits to their power didn’t even wait on Biden taking office to die.

  23. The conspiracy of ignorance masquerades – with soiled panties on their faces – as common sense.

    Is a discarded face-pantie effective hazardous material or not? Call 911?

    Self-test and re-test for ansomia and dysgeusia symptoms with fine wine ethanol internal disinfectant.

  24. It is apparent that Biden has his head up his butt; consequently he is not a threat and should be exempt from any mask requirement.

    1. Nah, there are a lot of people with their heads up Biden’s ass, so they definitely need to wear masks while they are all up there together

  25. I am certain a Court that “finds” that the commerce clause supports federal regulation of wheat grown in one’s own yard for one’s own consumption, Wickard, and which that faint-hearted originalist Scalia found no quarrel with in Raich, which must have sent the Framers spinning in their graves, would have no problem decreeing that this “emergency” measure is well within the commerce clause. Hey, Folks, Statism is not originalist conservatism!

  26. I hope the virtue signaling “libertarians for Biden” now are starting grasp the reality of that decision…

  27. The first article I saw today was on the anniversary of Wickard.

    In the spirit of that decision… A mask mandate effects the likelihood of utilizing our medical system, which is full of interstate concerns. Therefore, a mask mandate is authorized by the commerce clause.

  28. “Mr. Biden would like to see a national mask mandate”

    Did the American people really elect a President who would fine and fail people for failing to plaster the social symbol cloth over their mouth?

  29. Given the overwhelming dominance of liberal legal academics, of an awful news media that has abandoned objectivity, I welcome critical pieces like this about a Biden Administration. Ilya Somin hasn’t exactly been shy about criticizing the godawful Trump.
    I voted for Biden – Trump simply is not suited for the presidency (to be charitable) – but one of my concerns is that critical analysis of his policies, the checks needed by a media, by a legal academy, by others will simply not be there. Maybe with Trump gone these institutions will re-discover their roles; but that’s a hope and not more.

  30. I suspect they’d try to use Federal regulation of businesses more than anything else and prohibit businesses from allowing people to enter without a mask.

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