The Volokh Conspiracy

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Biden Executive Order Mandates Mask Wearing on Domestic and International Travel

Planes, trains, and busses, but not private modes of conveyance.


Today, President Biden issued an executive order "on Promoting COVID-19 Safety in Domestic and International Travel." Biden orders various cabinet official:

"to the extent appropriate and consistent with applicable law, to require masks to be worn in compliance with CDC guidelines in or on: (i) airports; (ii) commercial aircraft; (iii) trains;  (iv) public maritime vessels, including ferries; (v) intercity bus services; and (vi) all forms of public transportation as defined in section 5302 of title 49, United States Code."

This order stops short of imposing a mask mandate for all interstate modes of transit. The order does not purport to regulate private modes of conveyance. The sixth category, 49 U.S.C. 5302, defines "public transportation" as "regular, continuing shared-ride surface transportation services that are open to the general public or open to a segment of the general public defined by age, disability, or low income." But "public transportation" does not include:

"(i)intercity passenger rail transportation provided by the entity described in chapter 243 (or a successor to such entity); (ii)intercity bus service; (iii)charter bus service; (iv)school bus service; (v)sightseeing service; (vi)courtesy shuttle service for patrons of one or more specific establishments; or (vii)intra-terminal or intra-facility shuttle services."

The order also requires that international travelers must "produce proof of a recent negative COVID-19 test prior to entry." The order also suggests that international travelers quarantine upon arrival, but there do not seem to be any enforcement mechanisms.

Section 5(e) sets the stage for a vaccination database:

(e)  International Certificates of Vaccination or Prophylaxis.  Consistent with applicable law, the Secretary of State, the Secretary of HHS, and the Secretary of Homeland Security (including through the Administrator of the TSA), in coordination with any relevant international organizations, shall assess the feasibility of linking COVID-19 vaccination to International Certificates of Vaccination or Prophylaxis (ICVP) and producing electronic versions of ICVPs.

We are now fully 24 hours into the Biden administration, and still no nationwide injunction. So far, so good.