As pointless masking orders become all the rage Joe Biden says he’d make us do it. Mask us. All of us. Presumably, with his phone and a pen, but depending on the outcome in November, perhaps via Congress. Does either have a leg on which to stand?
Before I give you an actual lawyer’s answer, I’d like to note that if the Dems flip the Senate and have the votes, they will impeach Kavanaugh and anyone else to make room for Democrat nominees. That’s who we are dealing with here. So with that point made, on to the matter at hand.
Biden Joe has promised a Federal nationwide mask mandate. Is it constitutional?
While states may have an out on the question of threats to public health (ignoring that the demand is itself a threat to public health which this is), there is no clear cut federal authority to make someone wear something.
That’s not to say they could not find a path by other means. There are also plenty of examples of laws or powers executed with the force of law that violates the constitution unmolested. The point is that where there is a will and a majority (or a mob), there is away.
But assuming an honest reading on the matter of a constitutional mask mandate, “could Congress enact a mask mandate?” The answer appears to be no.
I think a Due Process Challenge based on the Due Process Clause of the 5th Amendment would fail under Jacobson. But there is a far more potent line of attack: what enumerated power would allow Congress to require people to wear masks? Of course, this question brings back the debate in NFIB v. Sebelius. Could Congress make a person buy insurance to help promote the national health care system? The Supreme Court said no.
The power to regulate commerce presupposes the existence of commerce. Congress cannot use its Commerce Power to force people into economic activity. A person, who chooses not to wear a mask, is beyond the scope of commerce power. Moreover, I do not think it would be a proper exercise of federal power to compel someone to place something on their face. There is no tradition of such a law. Moreover, the states are ready and able to enforce social hygiene measures–even short of a mask mandate.
So, Josh Blackman, a constitutional law professor at the South Texas College of Law Houston, finds it unlikely that there is any clear Constitutional path to support this, though, in his own words, he’d have to see the language in the bill.
And that would play differently in the courts (assuming challenges) with a Democrat majority Senate working its vendetta voodoo on the Supreme Court as suggested earlier. We could add any number of lower court positions as well. If you are going to clean house, you do it fast and furious, and I do not see Democrats as above this. It’s easier than staging that many accidents, and it appears legal.
Assuming no bill and an energetic day-one mandate from the New Demander in Chief, I expect there would be lawsuits flying before the ink dried, though, a trip out any store suggests more supporters than not. Not nearly as scary a proposition as a President Joe Biden or even worse, President Kamala Harris.
I’d be willing to wear any number o things to prevent that. No, I’m not fishing for suggestions, but I know you’ll offer them anyway.