Biden Executive Order Mandates Mask Wearing on Domestic and International Travel

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

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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.

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  1. > So far, so good.

    Is a bizarre way to follow-up…

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

    1. We can’t have voter IDs but now have vaccination IDs.

      For all the people who complained about Trump being a fascist, you ain’t seen nothing yet…

      God help us all…

  2. Some of the bloggers here are going to be very upset if the new Covid rules are inconvenient for travelers from Yemen.

    1. But most of them will focusing on keeping the world safe for bigots and on lathering QAnon-confused rubes.

      1. Not my President.

        Where is my pussyhat?

        Grab him by the ballot.

        AAAAAGHHHH!

      2. You still are and will always be an imbecile and an asshole.

        Cheers!

        1. You get to whimper all you want.

          But you will comply.

          1. <>

            And there it is, in a nutshell.

          2. The authoritarian in strong in this one.

        2. Still waiting for Artie to say something in lawyer. I used the word, utterance, for example.

  3. How far into the Trump administration were we when we got the first nationwide injunction?

    Sincere, not rhetorical, question.

    1. Eight days.

      The first nationwide injunction against President Trump’s executive actions was issued on January 28, 2017, just eight days into the administration.

      See: http://joshblackman.com/blog/2017/01/28/nationwide-injunction-stay-really-issued-in-darweesh-v-trump/

      1. Thanks.

        I guess we’ll soon see whether that is beat under President Biden.

        1. I’m waiting for EV quadrennial “now that you were for it, you must be against it” post about support for various Courts related issues.

        2. No injunctions allowed. Its a D president

  4. “but there do not seem to be any enforcement mechanisms”

    So there’s no reason to expect compliance then.

  5. Hey Blackman, good to see you (I lied)!

    When is Biden packing the SCOTUS, making DC a state, and abolishing the filibuster? You assured us, in great, melodramatic detail, that it would happen. So c’mon, when is it?

    1. Next month after the impeachment trial of election loser Trump. In Russia, they prosecute the loser for false fraud charges, and give him nerve poison. Same in the US.

    2. So far Dems have refused to agree to keeping the filibuster.

      1. They must think they will never leave power. Of course, if they admit DC and Puerto Rico as states, grant immediate citizenship to anyone who crosses the border, mandate ballot harvesting in all 50–I mean 52–states, and expand the Supreme Court to 15 seats, they may be right.

  6. “So far, so good.”

    More like, “So far, not all possible outrages have happened yet.” I haven’t seen a lot of actual good.

  7. And so twelve or so years of nipping at ankles, lathering rubes, and nipping at ankles while lathering rubes at the Volokh Conspiracy has begun.

    1. Your turn, Democrat cheaters.

      Biden is gone before the 2022 Republican Congress. He had trouble walking, talking, and remembering on national TV. Then, notorious prostitute, Harris, gets impeached and removed. The Republican Speaker of the House seizes the Presidency from these agents of the Chinese Communist Party and of their collaborators, the tech billionaires.

      1. I wasn’t all conspiratorial about Biden’s health during the campaign as he looked at least competent during the debates. But these issues with him are getting worse. Before each cough, which sounds like purposefully clearing the throat more than an involuntary deep chest cough, you can clearly hear his speech become labored due to phlegm.

        YouTube has unlisted the latest video of Biden singing EOs. In addition to slurring of his speech (worse than usual) his handlers are cutting off the press.

        https://www.youtube.com/watch?v=Ec3mkoSWf0A

  8. Let’s not forget that the fucking hypocrite Biden did not wear a mask to the Lincoln Memorial because “he has bigger things to worry about”

    Way to set an example Joe!

    1. “because “he has bigger things to worry about””

      Like remembering where he put his shoes.

    2. If it were not for the MAGA show of commitment on January 6th I think the plan was to never have him take the oath of office. Me thinks they had to pull an audible and hope Biden can hold it together for a few months.

    3. Hypocrite doesn’t mean what you think it means.

  9. Did Amtrak joe actually exempt rail from masks?

    What is the intercity rail line?

    1. Yes. He. Did.

      2012 US Code
      Title 49 – Transportation
      Subtitle V – RAIL PROGRAMS (§§ 20101 – 28505)
      Part C – PASSENGER TRANSPORTATION (§§ 24101 – 24910)
      Chapter 243 – AMTRAK (§§ 24301 – 24316)

      1. Or does Amtrak get recaptured under iii) trains?

  10. Well now, this is interesting.

    The XO requires masks “in compliance with CDC guidelines.” Those guidelines actually have a section titled: “Who should not wear a mask” — which includes “[a]nyone who has trouble breathing.”

    So it appears the XO actually requires less comprehensive mask usage than the airlines etc. already were.

    Golf clap?

  11. I didn’t see any statutory authority cited in the executive order. Is there any? Or is this entirey illegal? Even if it’s interstate trade, that doesn’t mean the President can regulate it without Congress passing a law. In fact, he can’t even implement a regulation when there *is* a statute without going through notice and comment. So how is this legal?

    1. The expectation is that they’ll use the word, “emergency”, and the courts will roll over and play dead, because he’s not Trump.

      Or if the courts start requiring him to do things like cite constitutional/statutory authority, and comply with the APA, then they’ve got their excuse for Court packing.

      1. God, you’re a moron.

        Like many Trump executive orders before it, Biden’s “mask mandate” simply directs agencies to implement their own mask orders, to the extent consistent with applicable law. No authority, no mandate. It’s as simple as that.

        The order ends up being more significant as a symbolic gesture intended to convey a shift in policy. So just calm the fuck down.

        1. The order ends up being more significant as a symbolic gesture intended to convey a shift in policy.

          Well, that’s certainly consistent with it requiring less comprehensive mask usage than the airlines are already requiring themselves, as I mentioned above.

          But that sorta begs the question — “shift in policy” to what? Feel-good paper churning? Even fuller employment for the mass of bureaucrats that have to roll out the actual implementation of the do-nothing standard?

          1. There’s a big middle between tyranny and doing nothing.

            Government as pacesetter matters. This is one of the reasons people were so opposed to the wall, even if it’s also ineffective.

        2. No, it is a Trojan Horse — people are looking at the mask mandate and missing the Orwellian vaccination database.

          That’s the beginning of our version of the Chinese social credit system.

          1. I won’t be worried about vaccine databases unless HIPAA is altered by Congress.

            1. Just FWIW, WA has a (pre covid) vaccination database.

    2. The order doesn’t require any individual person (apart from members of the executive branch) to do anything. It’s a statement of presidential policy and a direction to administration officials to impose mandates, to the extent consistent with applicable law.

    3. I did wonder about the hypothesis of the obscene name-calling commentor that the executive order was completely vacuous because it only applies “to the extent consistent with applicable law”, but I didn’t mention that because it seemed to make the order too stupid to believe. I was naive, perhaps. It might be issued just to pretend, like Biden’s setting a vaccination rate goal that Trump already surpassed.
      The order is still significant, for saying what illegal things Biden would *like* to do. It’s like issuing an executive order that requires all federal agencies to stop hiring Republicans for the civil service, “to the extent consistent with applicable law.”

    4. Well to be fair the courts have been rolling over for almost a year.

      Barr’s speeches about the constitution not being suspended by the virus are false. In practice it has been suspended until the dictator tells you its over which of course is never. And the DOJ never actually did anything.

      They’ll be even more compliant now. Weird your rights are supposed to be inalienable but the courts including SCOTUS really seem to be running and hiding.

      And our DOJ is even more of a joke. They are too busy chasing and harrassing people who were standing on the mall trying to make something up

  12. Remember that brave Chinese ophthalmologist who spoke from his hospital bed, then died of COVID. He caught it in the OR. He was masked.

    Making everyone look like a Democrat douche bag is quackery. Only the real N95 will exclude aerosols. Its weave is 300 nm. The diameter of the virus end of spike to end of spike is 120 nm.

    Masks attenuate the risk 2% in some studies. They are misleading if they give people confidence to get closer together, to breathe each other’s air.

    How about the epidemiology of the 14th Century for a change? Confine the infected, including the asymptomatic infected young people. That is not quackery.

    1. ‘Confine the infected, including the asymptomatic infected young people. That is not quackery.”
      That is what China did in their pop-up mega hospitals

      1. China confined everyone. That is disastrous quackery that killed millions through impoverishment. That is what the mass murdering Democrat Govs did. The village of Vo Euganeo, confined all positive people for 2 weeks, and ended its epidemic. The quarantine laws of the states permit the confinement of infected people. They do not allow the confinement of everyone else.

        1. DAvid,
          Get your facts straight before you comment. China did not put the entire city of Wuhan in a hospital. They did cut off Wuhan and its province. Too prevent spread outside the region. They also do very rapid graduated screening to identify and isolate the infected.
          Those are very different actions. In Europe, the governments quarantined sick people at home where they could and did infect their families.
          As to whether the entirety of China’s actions are consistent with the actions of a free society, the answer is no. They put the full, advanced technologies of their surveillance state to work.

  13. What a lot of people (perhaps including the Thief in Chief) forgot to realize is that the Interstate Highways are owned by the states.

    They were built with 90% Federal money and to Federal specifications, including the 13’6″ overpass height for Army needs (a specific towed gun), but they are on state-owned land, and policed by the states.

    Eisenhower would never have gotten away with Federal ownership let alone a Federal Highway Patrol in the 1950’s.

  14. Which enumerated power is this, exactly?

    (“It’s the commerce clause, which covers literally every activity in America!”)

  15. Can require seat belts.

    Can require bikers to wear helmets.

    Can’t require masks?

    1. Those state laws or federal laws?

      Because here in Arizona there isn’t a state helmet law, I want to make sure I’m not an unknowing federal felon.

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