{"id":13832,"date":"2021-01-26T08:47:48","date_gmt":"2021-01-26T08:47:48","guid":{"rendered":"https:\/\/www.radiofree.org\/?p=154543"},"modified":"2021-01-26T08:47:48","modified_gmt":"2021-01-26T08:47:48","slug":"masking-up-under-biden-the-perils-of-tribalism-bureaucracy-and-lawsuits","status":"publish","type":"post","link":"https:\/\/radiofree.asia\/2021\/01\/26\/masking-up-under-biden-the-perils-of-tribalism-bureaucracy-and-lawsuits\/","title":{"rendered":"Masking Up Under Biden: the Perils of Tribalism, Bureaucracy and Lawsuits"},"content":{"rendered":"
\n

Photograph by Nathaniel St. Clair<\/p>\n<\/div>\n

One crackling theme streaking through the US elections of 2020 was the issue of mask wearing. Critics initially felt that facemasks were of the too important category in combating the novel coronavirus: purchasing and using them was tantamount to prizing valuable protective equipment from doctors and frontline workers.\u00a0 But COVID-19 continued to rage, and various public health bodies including the World Health Organization revised their initially cautious approach.\u00a0 Masks, manufactured in abundance, could be an affordable non-pharmacological method of halting the spread of the pandemic.<\/p>\n

The facemask became the symbol of the now departed Donald Trump\u2019s view of the world: to don such a covering was an admission of weakness, an effete alternative to the rugged, at times idiotic notion of pioneer individualism.\u00a0 Had he stuck to a debate on scientific literature (causation not being correlation and vice-a-versa), he might have been on firmer ground.\u00a0 Instead, he preferred to dismiss mask wearing as an act of political correctness<\/a>.<\/p>\n

Joe Biden, in contrast, promised to scotch any such reservations on coming to office.\u00a0 On August 20, 2020, he declared<\/a>in accepting the Democratic nomination that his COVID-19 plan would involve a \u201cnational mandate to wear a mask.\u201d\u00a0 He called it \u201ca patriotic duty\u201d rather than an onerous burden.<\/p>\n

The logistics for any such national policies would always be challenging and potentially imperilling.\u00a0 Trump, scoffing at the validity of such measures, suggested in a press briefing<\/a> last year that Biden was incapable of identifying \u201cwhat authority the president has to issue such a mandate or how federal law enforcement could possibly enforce it or why we would be stepping on governors throughout our country, many of whom have done a very good job and know what is needed.\u201d<\/p>\n

A prevailing conventional view is that the province of public health and safety remains the purview and power of state governments.\u00a0 In 1905, the Supreme Court in Jacobson v Massachusetts<\/a><\/em> held by 7-2 that states have the power to enact compulsory regulations in regulating public health.\u00a0 The justices were particular interested in mandatory vaccination laws, and found that, states had \u201cthe police power \u2026 to enact a compulsory vaccination law, and it is for the legislature, and not for the courts, to determine in the first instance whether vaccination is or is not the best mode for the prevention of smallpox and the protection of public health.\u201d<\/p>\n

In July 2020, James Phillips of Chapman University and John Yoo of UC Berkeley expressed the view<\/a> that the constitutional republic would find vast federally imposed measures, even those protecting the health of the populace, problematic and undesirable. \u201cOur founders established a national government of limited, enumerated powers, and reserved the authority over everything else to the states.\u201d<\/p>\n

There was no shortness of irony in this, given Yoo\u2019s advice<\/a> to the George W. Bush administration when serving in the office of Legal Counsel advocating vast executive powers justifying, among other things, the use of torture and warrantless surveillance.\u00a0 During times of national emergency, the executive power expands.\u00a0 Not, it seems, during a public health crisis.<\/p>\n

For all that, the authors do make valid points.\u00a0 Biden would have to rely on Congressional measures that he himself could enforce.\u00a0 One source of authorising power can be found in the Commerce Clause, empowering Congress to \u201cregulate Commerce \u2026 among the several States.\u201d\u00a0 Mask wearing protocols might be tagged to interstate travel, though it would be problematic compelling non-travelling citizens to wear them.<\/p>\n

According to the authors, wearing a mask might not be commercial in nature, but mandating mask wearing would increase commerce.\u00a0 But Supreme Court jurisprudence on the subject, notably in the Obamacare case<\/a>, has held that \u201cCongress cannot create commerce in order to then regulate it.\u201d<\/p>\n

David Carillo of the California Constitutional Centre at UC Berkeley\u2019s School of Law notes<\/a> that Biden is on safe ground when it comes to mandating the use of masks in federal buildings and on federal property via executive order.\u00a0 Such a power would not extend to mandatory mask wearing \u201con interstate buses and trains because only the US Congress can regulate interstate commerce by law, not the president by directive.\u201d<\/p>\n

Legal challenges are inevitable, and Quinnipiac University School of Law\u2019s William Dunlap sees<\/a> litigants pressing courts to \u201clook and see what Congress has done and compare the president\u2019s rules with existing congressional rules to see whether they contradict each other or support each other.\u201d<\/p>\n

On January 20, 2021, the new president signed an Executive Order on Protecting the Federal Workforce and Requiring Mask-Wearing<\/a>, enacting regulations very much in line with Carillo\u2019s advice.\u00a0 \u201cPut simply, masks and other public health measures reduce the spread of the disease, particularly when communities make widespread use of such measures, and thus save lives.\u201d<\/p>\n

The order also encourages a \u201cmasking across America,\u201d with the Secretary of Health and Human Services and the Director of the Centers for Disease Control and Prevention tasked with engaging \u201cas appropriate, with State, local, Tribal, and territorial officials, as well as business, union, academic, and other community leaders, regarding mask-wearing and other public health measures\u201d.\u00a0 The aim of such engagement is to maximise \u201cpublic compliance with, and addressing any obstacles to, mask-wearing and other public health practices identified by CDC.\u201d<\/p>\n

A second Executive Order<\/a> requires mask wearing on certain domestic modes of transportation covering airports, commercial aircraft, trains, public maritime vessels, intercity bus services and \u201call forms of public transportation as defined in section 5302 of title 49, United States Code.\u201d\u00a0 But Biden also acknowledges that consultation shall take place between the heads of agencies and \u201cState, local, Tribal and territorial officials\u201d along with \u201cindustry and union representatives from the transport sector; and consumer representatives.\u201d\u00a0 The fangs of the regulation seem, if not missing, then distinctly blunt.<\/p>\n

Both orders, in other words, amount to a national mask framework of sorts but point to a grand suggestion rather than an imperative for mask wearing.\u00a0 The orders do little to clarify the machinery of enforcement, and how strictly the task will be pursued.\u00a0 Agencies will be given the lead, but this entire effort risks crumbling before the twin forces of confused bureaucracy and dedicated tribalism.\u00a0 Republicans are already promising derailing lawsuits.\u00a0 Representative Chip Roy (R-Texas) preferred the more vulgar alternative.\u00a0 \u201cOn day one,\u201d he tweeted<\/a> in December in response to Biden\u2019s promise, \u201cI will tell you to kiss my ass.\u201d<\/p>\n

 <\/p>\n

The post Masking Up Under Biden: the Perils of Tribalism, Bureaucracy and Lawsuits<\/a> appeared first on CounterPunch.org<\/a>.<\/p>\n\n

This post was originally published on Radio Free<\/a>. <\/p>","protected":false},"excerpt":{"rendered":"

Photograph by Nathaniel St. Clair One crackling theme streaking through the US elections of 2020 was the issue of mask wearing. Critics initially felt that facemasks were of\u2026<\/p>\n","protected":false},"author":30,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[22,4],"tags":[],"_links":{"self":[{"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/posts\/13832"}],"collection":[{"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/users\/30"}],"replies":[{"embeddable":true,"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/comments?post=13832"}],"version-history":[{"count":1,"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/posts\/13832\/revisions"}],"predecessor-version":[{"id":13833,"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/posts\/13832\/revisions\/13833"}],"wp:attachment":[{"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/media?parent=13832"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/categories?post=13832"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/tags?post=13832"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}