Can the next administration enact a nationwide mask mandate? Here’s what we learned

ATLANTA — President-elect Joe Biden is already moving to set the tone for his administration’s response to the COVID-19 pandemic.

He has named an advisory panel and suggested that he’ll consider issuing a nationwide mask mandate after he is sworn in Jan. 20.

Biden has stated on multiple occasions that he does not have the power to mandate masks anywhere except federal property, and that he would instead appeal to American’s sense of patriotism, as well as ask governor’s to use their authority to enforce mask policies.

Both a professor at GSU College of Law and an officer of a libertarian foundation agree that ordering everyone to wear a mask is just a tiny start in a country of 50 states, where there are thousands of individual communities and 330 million people.

“Even if the president does it, who’s going to enforce it?” professor Anthony Kreis told Channel 2 investigative reporter Richard Belcher. “There’s no way that the federal government can constitutionally force or, what we could call, commandeer state agents to do the federal government’s work for them.”

“The mask mandate, nationally, is unenforceable. Republican constituents and a lot of libertarians are not the kinds of people who take kindly to mandates,” said Benita Dodd, vice president of the Georgia Public Policy Foundation.


The sharp political divide that was evidenced in the presidential vote last week is also clear in the debate over masks.

Biden was rarely without a mask for the past several months, while President Donald Trump rarely wore one for months.

Here in Georgia, Gov. Brian Kemp wears one. But earlier this year, he got into a nasty and public fight with Atlanta Mayor Keisha Lance Bottoms about her mask mandate for Atlanta.

Ultimately, the governor dropped a legal challenge to the mayor.

Kreis, who also has a Ph.D. in political science, said one existing federal law — the Public Health Service Act — may give Washington the authority to order all Americans to wear masks to limit the risk of spreading a highly contagious disease, but Kreis would prefer that Biden encourage rather than mandate.

“The president’s bully pulpit is incredibly important,” he told Belcher.

Dodd said to leave it to the states.

“That’s why we have a federal republic, so states can take these responsibilities upon themselves,” Dodd said.

So if a mandate may be legally or practically impossible, what are the options? Both Kreis and Dodd suggest that Congress should consider doing what Congress does very well: Offer lots of money but with strings attached.

“You can incentivize the states just as we incentivize speed limits. The federal government can offer states incentives to do this,” said Dodd.

“If you want it (federal money), part of the condition is that you have to adapt and enforce a public mask mandate,” Kreis told Belcher.

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