Requirements to wear facemasks in the fight against Covid-19 are back in the news after some political leaders have issued mandates requiring or banning masks in certain situations. So what are the core constitutional issues in these mask controversies?
In late July, President Joseph Biden ordered federal employees and contractors to attest to their own vaccinations, or wear masks on the job and get Covid-19 tests. The military also mandated mask wearing.
At the same time, Florida Governor Ron DeSantis banned all Florida schools from requiring Covid-19 mask wearing, or face the loss of state funds. Issuing an executive order on July 30, DeSantis said that school district-imposed mask mandates violated the constitutional freedoms of Florida residents and parents’ rights under Florida’s constitution to make health-care decisions for their children. Several other states, including Texas, have also banned school-district imposed mask mandates. Two lawsuits have been filed against DeSantis. A state judge considered an injunction against the executive on Friday, while a separate group of parents filed suit in federal court.
Aside from the political debate about mask wearing, there are several federal and state constitutional issues in play. These issues involve the separation of powers within the federal government; the balance of power between the federal government and the states; and power sharing within a state, under its own constitution, between state legislatures, the chief executive, and local government agencies such as school boards.
The Federal Government and Mask Mandates
The Congressional Research Service’s guidance concludes that the ability of the President or Congress to mandate mask wearing is similar the federal government’s limited power to mandate Covid-19 vaccines.
In general terms, a federal mask mandate can be ordered for people and property directly under the federal government’s jurisdiction. While no specific federal law exists about mask mandates, public health laws empower the executive branch to make rules “to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession.” Congress also has powers under the Spending Clause and Commerce Clause to influence state mask mandates by providing financial incentives or regulating some interstate business activities.
However, the President or Congress can exercise considerable powers at ports of entry to the United States. Currently, the Transportation Security Administration requires masks on airplanes and other forms of public transportation, with limited exceptions. That mandate is set to expire on September 13, 2021.
The States and Mask Mandates
In August 2020, the Congressional Research Service also wrote that federal constitutional precedents made it unlikely that the federal government could issue a national mask wearing mandate that applies to the states. The 10th Amendment’s anti-commandeering provision bars “the federal government from commandeering or requiring state officers to carry out federal directives. This principle thus prevents Congress from requiring states or localities to mandate masks,” the CRS concluded. Another reality is that the federal government may be unable to enforce a national mask mandate due to the sheer scope of such an action on a state and local level.
However, some mask mandate opponents have made arguments that even state-issued mask mandates violate the federal constitution’s First Amendment. One argument that has been upheld by the federal courts, including the Supreme Court, is that religious activity within buildings is protected under the Constitution’s Free Exercise clause. In April 2021, a divided Supreme Court said in Tandon v. Newsom that the state of California could not apply Covid-19 restrictions to an at-home Bible study group that had more than three households meeting in the same room, in violation of a state regulation. The court noted California permitted larger gatherings in retail stores and other venues.
Arguments that have had less success are that the imposition of mask wearing violates the First Amendment’s Free Speech and Assembly clauses, or that the masks themselves represent forced political expression.
In July 2020, a court in Palm Beach, Florida, refused to block a mask mandate ordered by county commissioners; the litigants claimed that the mandate violated their personal freedoms and privacy rights. State Circuit Court Judge John S. Kastrenakes concluded that “the right to be free from governmental intrusion does not automatically or completely shield an individual's conduct from regulation.” Kastrenakes also cited the U.S. Supreme Court’s decision in Jacobson v. Massachusetts (1905), arguing that it permitted a local government to impose a vaccine mandate during a public emergency.
Parents in six South Florida counties have now filed a lawsuit against Florida Governor DeSantis and other state officials. They challenge DeSantis’s claim that school-district mask decisions belong to parents. This ongoing lawsuit argues that local school districts have the jurisdiction, under the Florida constitution’s home rule powers, to issue a mask mandate, and that the mandate ban in the governor’s executive order violates public safety guarantees under the state constitution. In a separate federal lawsuit, filed in the United States District Court for the Southern District of Florida, the challengers seek an injunction against the Florida executive order, arguing that it violates the Individuals with Disabilities Education Act, the Americans with Disabilities Act, and Section 504 of the Rehabilitation Act.
In Texas, challengers have filed similar lawsuits against Governor Greg Abbott related to his school mask mandate ban. Dallas and San Antonio were granted temporary restraining orders after county leaders claimed Abbott’s order interfered with their public safety duties. In Arkansas, a temporary injunction was ordered by a state judge on August 6 against a state law banning mask mandates at schools. The judge concluded that the law violated the Arkansas state constitution.
And in Michigan, a lawsuit from a Catholic private school is now at the U.S. Court of Appeals for the Sixth Circuit. The Resurrection School in Lansing, Michigan, and two parents argue that Michigan’s mask-wearing mandate in 2020 for all schools violated their religious freedoms. The lawsuit reasoned that the ability of students to see the faces of other people was essential to the Catholic faith “because God created us in His image.”
In December 2020, a lower court judge rejected an injunction sought by the school, deciding that the mask mandate was neutral and did not target the school for its religious beliefs. Although Michigan has lifted its mask mandate, arguments were heard in the case in late July. The school’s attorneys told a three-judge panel on July 21 that the Supreme Court’s recent decision in Fulton v. City of Philadelphia expanded legal exceptions for religious institutions.
Scott Bomboy is the editor in chilef of the National Constitution Center.
