On Wednesday in Delaware, Joe Biden declared that he would impose a national mask mandate by executive order, enforce “uniform national guidelines” for dealing with the pandemic, establish “national criteria for opening schools,” and by implication take authority from the states in to address the pandemic.
As any thinking person would recognize, a one-size-fits-all approach is not the right way to deal with COVID-19. The approach taken by New York to address the pandemic does not necessarily make sense for North Dakota. Decentralized decision making is usually better decision making. It’s also more responsive to the people. Getting your state legislator to address a problem is a lot easier than trying to get your congressman to respond.
More importantly, Biden seems unaware that the president has no legal authority to impose a national mask mandate via executive order. Such authority must either be conveyed by Congress in federal statute or be found in the Constitution itself. For example, when President Trump imposed travel bans by executive order at the beginning of his administration and at the beginning of the pandemic, he had statutory authorization to do so.
8 U.S.C. 1182(f) clearly authorized the President to take such action: “Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens ….”
But Congress has never enacted a statute giving the executive the authority to impose a mask mandate or anything remotely similar. And Congress could only do so if the Constitution permitted it to enact such a statute. However, it is unlikely that Congress has the power to enact a national mask mandate or to authorize the president to order one. The broadest congressional power—the power to regulate interstate commerce, found in Article I, Section 8—cannot plausibly be stretched to force people to wear masks when they are not crossing state lines.
As for executive authority in the Constitution itself to enforce Biden’s mask mandate, again there is none. The president does possess the authority to faithfully execute federal laws, but as explained above, there is no such law that applies. The president also has the authority to act as commander in chief of the armed forces, but that too fails to give him authority to enforce a mask mandate.
If this is any indication of what a Biden Administration might look like, it’s a troubling picture. The rule of law is likely to be tested. In spite of the howling by the Left and the press when President Trump issued his executive orders, he had clear legal authority to act. But when Biden proposes something without any legal authority, the press is silent.
Kris W. Kobach is an expert in immigration law and election fraud. He was a professor of constitutional law during 1996-2011 at the University of Missouri-KC and served as counsel to U.S. Attorney General John Ashcroft during 2001-2003. He was the Secretary of State of Kansas during 2011-2019.