Right now the comment-sphere of political social media is overrun by amateur pundits who put themselves forward as both constitutional law scholars and epidemiologists. It’s maddening. They say with absolute certainty, because they saw a hastily put together infographic from their high school buddy, that a mask mandate is unconstitutional. They then proudly declare this newly gained certainty to the world by chiding public health officials as tyrants running afoul of our sacred founding documents.
Then the other shoe drops. Someone says, “How is a mask mandate unconstitutional?” This inquisitor may even cite examples like speed limits, seatbelt mandates, vaccination requirements at schools, or restaurant sanitation as examples of government intervention in the name of public health. Interventions that, unlike mask mandates, are not going anywhere soon. Then comes the reply from the anti-masker. Whatever form the reply takes, it doesn’t cite a part of the actual United States Constitution. The reason for that is simple.
There are only two types of people who declare something “unconstitutional” and they are in order of importance: 1) Federal judges and 2) people who have not read the Constitution. The Constitution is remarkably short and, despite some antiquated language, weird capitalization norms, and a fetish for militia regulation, it is a pretty easy read. Those who have picked it up and finished it end-to-end, which may take all of an hour, would never have the audacity to say something is unconstitutional. They would either qualify the statement with it “might be” unconstitutional or they would point you to a specific chapter and verse from where they derive their point.
With that in mind, there are several places in the Constitution where you can build an argument that our Federal and State governments do in fact, to the horror of the ill-informed, possess the authority to issue a temporary mask mandate.
First, a quick lesson on the structure of the Constitution. The main document is comprised of seven articles, each with its own sections. The more famous pieces are the subsequent amendments to those articles; the first ten such amendments are the Bill of Rights.
Not being a Federal judge, I would never presume to declare something definitely is or is not constitutional, but if you are looking for a sword with which to strike back in public debate I think these six arguments paint a picture that our system of government can try to slow the spread of deadly viruses, every now and then, with a mask mandate.
Article II Section I
The executive Power shall be vested in a President of the United States of America.
All of Article II details how the Presidency works; from how to elect a President to requiring they give the State of the Union. Details about nominating ambassadors, granting pardons, and even the text of their oath of office is contained within Article II.
That being said, at just over 1,000 words you will find that Article II is surprisingly light on detail when compared to what the modern Presidency actually does. Article II contains no mention of the National Security Council, press briefings, economic policy, or even a guarantee of an official residence like the White House. All of those things have emerged over centuries of precedent and statute and they stem from the first line in Article II, “the executive Power shall be vested in a President of the United States of America.” The keywords being: executive power. They even capitalized Power in the original text.
To the Founders and modern convention, the meaning of executive power is clear: they were saying “temporary King.” The manager, the person with some discretion on what to do. The overseer and executor of constitutional and statutory law.
President Trump has even said Article II gives him “absolute authority,” in certain matters of which it makes no explicit mention. That (alarming) argument is derived from the idea that the President is the executive, and unless another branch says otherwise, she or he can do whatever they think is necessary to serve the Union.
Because Congress later granted the Presidency the oversight of the Departments of Homeland Security, Health and Human Services, and Defense, along with the Public Health Service, you will find a lot of statutory law that makes them the overseer of our health and security. The Constitution grants them that oversight power and with it, almost certainly, the ability to decree a temporary requirement that we cover our face with a millimeter of cloth.
The 9th Amendment
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
One of the best amendments, in my opinion, is the often unused Ninth Amendment. This is the closest the Constitution comes to a safety net. It’s basically saying, “Hey, we didn’t have the time or wherewithal to list everything we could think of that’s an individual right. So just because we didn’t put it in the instruction manual doesn’t mean it’s not a right.” In other words, just because there’s no amendment saying you have the right to cream in your coffee does not mean you don’t. Sure the Founders took the time to say you can have guns (if you’re in the militia) and that the army can’t live in your house… but they could not be bothered to detail how campaigns should be financed or who should be allowed to vote. You still have rights, probably, even though they didn’t list (see: enumerate) those other rights.
How does this apply to mask mandates? It doesn’t. That’s the beauty of the amendment. It applies to anything you want it to. It also makes the counter-point to internet trolls that the Constitution is not so rigid as to provide absolute certainty where it has never been tested. Because masks, and even what to do in emergencies, are not mentioned… you have to put the situation to the test in laws and courts. The 9th Amendment says that even though something was not explicitly deemed constitutional does not make that thing (i.e. masks) unconstitutional.
The 10th Amendment
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
One of the most applicable amendments in the mask debate is the Tenth Amendment. Like the Ninth, this amendment is designed as a catch-all for application of the law. It tells us that the powers not granted to the Federal government may not be swallowed up by it, but rather are the domain of State governments and the people.
This is perhaps the most powerful argument in favor of state-by-state health mandates: because the Constitution does not grant the Federal government emergency powers or the right to prohibit states from acting in their own interests, and when no other higher authority intervenes, then the States can do what they want.
“But wait!” you might cry, “The Federal government interferes with states all the time. Why they even sent troops into the South to ensure black Americans could vote and go to school.” Yes, indeed they did. They were not only enforcing pieces of legislation in those instances, they were also upholding the Fourteenth Amendment, which grants equal protection under the law. The Fourteenth Amendment is exactly the type of “enumeration” the Tenth Amendment says is fair game… tough luck, Alabama.
It’s the height of irony that so many arch-conservative commentators who cry foul at Federal overreach, are casually ignoring that each state has sovereign powers and is allowed to act as it sees fit in situations like a public health crisis. These same commentators are now begging their nemesis, the Feds, to step in and override local control in the name of anti-mask sentiment.
Next time you are locked in a comment-reply battle, point them to the Tenth Amendment and the power of your State government. Your governors and state legislatures are not there for show, they are not subservient pieces of a central authority, they are political entities with their own rights and responsibilities too.
Article I Section 8
The Congress shall have Power To.. provide for the … general Welfare of the United States.
Although emergencies and temporary decrees are the things best handled by the executive branch, the Constitution also envisions the right of Congress to get in the game.
Article I of the Constitution tells us how Congress works, and it specifically grants Congress certain powers. Article I Section 8 lists off over a dozen such powers and in its opening salvo it provides Congress the power to “provide for the general Welfare of the United States.” Again, for reasons not immediately clear to modern readers, they capitalized “welfare.”
This handy little direction would grant Congress, if it chooses to do so, the right to legislate for the welfare (not the income assistance type, the “health and happiness” type) of the United States. It is, according to our best minds, in the interests of our health and well-being to temporarily require masks in certain places.
Congress could pass a Mask Act if it chooses to do so. All that is standing in the way is an eminent election, decades of worsening gridlock, and a general lack of moral fiber.
The Interstate Commerce Clause
The Congress shall have Power…To regulate Commerce with foreign Nations, and among the several States.
The Commerce Clause, also contained in Article I Section 8, is actually the foundation from which Congress does a lot of its legislating. In this clause, Congress is empowered to weigh-in anytime money changes hands between the states or foreign nations. In the age of PayPal and UPS, that opens the door for Congress to pass pretty much any law it can think of.
Using its power to regulate interstate commerce, Congress could make any number of arguments in favor of a mask mandate. Perhaps that if Colorado requires masks and Kansas does not, this creates some sort of unfair advantage for businesses in one state or the other. Or that restaurant franchises with locations in more than one state must, by virtue of crossing state lines, adhere to a Federal health order. You could even make the case that the tightly regulated health insurance market creates too many implications for health costs and insist that a law must intervene to stabilize a health emergency.
No matter what path you choose, Congress possesses the power to lead on the issue, and a suggestion that no force on Heaven or Earth can compel you to wear a mask is, simply put, not valid.
Article I Section 8 (Again)
The Congress shall have Power… To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
The hero of this argument, Article I Section 8, comes through for the third time with this subsection, which says plainly: Congress can also pass laws to ensure the Feds can do what they are commissioned to do. Seemingly without limit, Congress can pass laws to make sure the laws it passed are carried out.
At the end it also goes further to say this applies not only to legislation, but to supporting “any Department or Officer” of the United States. Because Congress has, over the years, done a lot of legislation on the issues of public health and national security, it can easily make the case that it has the power to explicitly state Federal authorities may issue mask mandates, and how to enforce those mandates, if it considers such a law necessary.
The Sad Truth
Unfortunately, tests of constitutionality usually take a lot of time. Time is something a lot of Americans do not have when faced with a pandemic. The next most depressing thing in our public discourse is the ever-increasing number of our fellow citizens who lecture about what is or is not constitutional and clearly have never bothered to open the document itself.
For them the Constitution is not a collection of writing, but a banner to rally around when they do not get their way. If the litmus test for what is unconstitutional is simply whether or not it upsets you, the debate is over before it has even begun.