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Executive Orders: CDC Rule on Masks On Local Travel
I intend to maintain a series of posts on Biden’s executive orders over the length of his term. In this edition, I’m following up on the CDC implementation of his “Executive Order on Promoting COVID-19 Safety in Domestic and International Travel” from January 21. The CDC issued a rule on Saturday, January 30 to implement this order. A Federal Register notice is posted here, with the full 11-page text available here. But the key part of the order is just two sentences:
People must wear masks that cover both the mouth and nose when awaiting, boarding, traveling on, or disembarking public conveyances. People must also wear masks when entering or on the premises of a transportation hub in the United States.
Let me state for the record that I strongly encourage everyone (except those who are immunized, very young, or have a medical reason they shouldn’t) to wear a mask when they’re in close quarters with other people outside the household, especially inside enclosed spaces like buses and airplanes. This disease is dangerous and very contagious, and it’s important that we voluntarily do what we can to limit its spread.
Now, with that throat-clearing out of the way, the thing that alarms me about this CDC order is that it claims authority not only over transportation between states but even wholly within them. They assert the right to require you to wear a mask inside a local taxi, for example. Generously, they have declined to force people to wear them inside private cars (but you must in “ride-shares”). So let’s go over where this authority is claimed to lie:
The Constitution delegates to Congress the power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes” in Article I, Section 8—one of the most important sections of the Constitution for all of us to know, because it enumerates the powers of Congress. Very few laws can be passed that don’t rest on a power listed here; most of the rest are in amendments. This is often called the Interstate Commerce Clause, because the power is limited to (1) commerce that is (2) between one state and another (foreign nations and Indian tribes being outside this discussion).
I am an originalist in my outlook on Constitutional law and am generally sympathetic to a strict construction of the text. So I don’t see “commerce” as a catch-all for any kind of activity that occurs between the states, although if someone can point out such a use of the word in the years leading up to 1789, I’d be willing to change my mind. So I’ll argue that commerce probably doesn’t mean the movement of people, but rather buying and selling. But if you stretched the meaning of commerce, you could arrive at Congress having the power to regulate the movement of people between states, which might reasonably lead to a power to regulate the spread of communicable diseases between them.
But the CDC claims they can regulate your behavior even wholly within your state, so where do they claim that authority? From Section 361 of the Public Health Service Act of 1944, which “clearly established the Federal Government’s quarantine authority for the first time,” according to Wikipedia. This was part of FDR’s push to nationalize more of private and state authority, as you can tell from his signing statement. The CDC rule cites the act, amended and codified as 42 U.S. Code §264, which is short and worth reading in full, here. The relevant paragraph reads,
(a) Promulgation and enforcement by Surgeon General
The Surgeon General, with the approval of the Secretary, is authorized to make and enforce such regulations as in his judgment are necessary 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. For purposes of carrying out and enforcing such regulations, the Surgeon General may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary.
Note that here, it still restricts itself to the spread “from one State […] into any other State,” but it does not limit the measures the Surgeon General can take (note the last sentence: “and other measures”), as long as he judges them to be necessary. This strikes me as an unconstitutional delegation of Congressional power to a bureaucrat.
Next, the CDC rule cites existing Federal regulations under 42 Code of Federal Regulations §70.2:
§ 70.2 Measures in the event of inadequate local control.
Whenever the Director of the Centers for Disease Control and Prevention determines that the measures taken by health authorities of any State or possession (including political subdivisions thereof) are insufficient to prevent the spread of any of the communicable diseases from such State or possession to any other State or possession, he/she may take such measures to prevent such spread of the diseases as he/she deems reasonably necessary, including inspection, fumigation, disinfection, sanitation, pest extermination, and destruction of animals or articles believed to be sources of infection.
Here’s where the intrastate intervention sneaks in! President Biden and the CDC have determined that any state, county, or city not requiring masks in taxis, buses, and so on are taking insufficient measures to prevent the spread between the states. It’s subtle, because spreading the disease within your own neighborhood is not by itself spreading it across state lines. But these diseases do spread wider, and eventually it will cross a border.
Furthermore, in regulating intrastate behavior (like taxis and local buses), the justification the CDC rule gives isn’t really about transportation. As far as I know, taxis and buses haven’t been the primary places for the disease to spread (have they?), and taxis in particular have too few people at a time to be an issue. It seems that they were on a roll with the idea of the transportation of infected people between states, so when they got to infectious spread within a state, they kept going with regulating transportation. The regulation is very arbitrary at this point. Wouldn’t it be more consistent for them (bear with me!) to regulate mask-wearing inside Wal-Mart or your local grocery store? Or to prevent you from going inside the store at all, relying on curbside pickup? To shut down your church? To close businesses? To prevent indoor gatherings of more than 5 people? Prevent you from visiting friends? All of these would fit their logic of “inadequate” local measures better than requiring you to wear a mask in a taxi. Yet that’s the one they actually ruled on. That’s weird. Why stop there? Is it that they knew this would provoke a backlash?
Finally, there’s one point we should consider: that a state, county, or city might be able to nullify this rule—not by making an even tighter rule, as the CDC suggests, but by passing a law explicitly nullifying it, under 42 USC 264:
(e) Preemption
Nothing in this section or section 266 of this title, or the regulations promulgated under such sections, may be construed as superseding any provision under State law (including regulations and including provisions established by political subdivisions of States), except to the extent that such a provision conflicts with an exercise of Federal authority under this section or section 266 of this title.
Section 266 is quarantine powers in time of war, so that won’t apply here. I’d appreciate the lawyers among the Ricochetti helping me understand how paragraph (e) might apply, because it looks too easy, and that makes me think I’m misunderstanding this part.
Let me summarize my points:
- I believe that Congress’ power under Art. I Sec. 8 of the Constitution allows it to regulate interstate commerce but not all other activity that crosses state borders.
- Even if we were to stipulate that the movement of people is “commerce” in some sense, I believe that the Public Health Service Act under 42 USC 264 unconstitutionally delegates Congress’ power to regulate interstate commerce to the Surgeon General. It does not restrict him in what measures he may take to prevent the spread of disease, leaving it up to his judgment.
- By asserting the right to supersede local measures, 42 CFR 70.2 further violates the Constitution’s limit of Federal power to interstate commerce.
- Intrastate transportation is a trivial component of the coronavirus transmission, so by limiting itself to transportation, the CDC is acting in an arbitrary way that doesn’t match its justification. But to go further would provoke a stronger backlash.
So what do we do? I’m a strong believer in Federalism, the 10th Amendment, and states’ rights. My long-term idea is to roll back Federal power over individuals within states, so that we regain the position of the states as the primary areas of legislation and limit the Federal government to its enumerated powers. The first problem is John Donne’s Meditation 17. You know, “No man is an island, entire of itself…” If Congress can regulate things that substantially affect interstate commerce, and we were to believe that “in our modern, interconnected world” everything affects everything else, then we’ve done away with perhaps the most important limitation on the power of Congress (see the sickening Wickard vs. Filburn, 1942). We must restore the states’ exclusive right to regulate commerce within their borders.
Next, we have to prevent Congress from delegating its authority to bureaucrats in the Executive branch. To give an unaccountable agency the nearly unlimited power to regulate the behavior of citizens is un-American.
But can anything be done here and now? Could there be an effective lawsuit against this order? Or do we have to keep at the long-term job of attacking the foundation it’s built on?
Published in Domestic Policy
These are excellent points. Unfortunately, the Commerce Clause has ceased to have any real meaning since the much-discussed Wickard v. Filburn in 1942. Those who want to turn intrastate into interstate will seize on any connection, no matter how tenuous. “So let’s see, where was this mask made.”
Using the power to regulate commerce, the Supreme Court upheld a depression era law preventing a farmer from growing forage for his own animals. Using the power to tax, the Supreme Court upheld a law requiring everyone to have health insurance.
My own belief is the Supreme Court should incline to support liberty, not the state. But then I’m not a lawyer with a life time appointment.
All the blue states already have state-wide mask mandates in place that cover all public transportation. The TSA just announced that it is requiring masks at all airport security checkpoints. This new rule makes all states “blue” in their control over their citizens, or their attempt to do so. Whenever I am indoors, I stretch the mandate nearly to the breaking point, because, since we have had a state-wide mandate in place since July, and the virus is STILL spreading, that tells me that masks do not work to stop the spread of the virus.
This is a really good post. It is important, has relevant links, and has pulls of key bits of information. Thanks.
Thanks! And you’re welcome. I have hoped that my posts would be informative, and I’m intending to keep this up for my Executive Orders series.
@hoyacon and @user_531302—
Yep, the Wickard vs. Filburn ruling has got to be one of the worst Supreme Court rulings in history, in terms of its opening up a Pandora’s box of unchecked powers. The only halfway-serious limit was the 1995 US vs. Lopez ruling on Federal gun regulations, which denied that everything fell under the interstate commerce clause.
But it’s been a quarter century since Lopez, and where are we? I had hoped it would be the start of a trend of reversals on interstate commerce clause power, but it seems to have fizzled out.
I checked Logan Airport covid-19 rules the other day, and it seems that their flights are proceeding fairly normally. I assume they are using instant tests to make this possible.
I guess the airlines have built in a lot of redundancies–instant tests, questionnaires, masks, social distancing, and so on. It’s very similar to the precautions that the healthcare facilities in Massachusetts are using.
It’s very confusing. I noticed though that Harvard is reopening for its spring semester. I assume they are in the heart of the trend watching for this virus in Boston, so if they are reopening, they must be feeling optimistic that the vaccines will start making a dent in the number of active cases, that a lot of people have already had the virus or they have innate or acquired immunity, and that the pandemic is winding down.
It’s really hard now to figure out where we are on the pandemic-in-progress curve.
My town on Cape Cod went way up in active cases (166 out of 23,000 population) a week ago, now down to 85 today and declining each day. I assume the little spike we had last month was due to the holidays.
My conclusion is that we should be seeing fewer precautions from here on out.
“There is no reason for anyone right now in the United States, with regard to coronavirus, to wear a mask,”
Anthony Fauci, February 14, 2020.
Now he is telling everyone to wear two masks!
The worst part, he excuses this as a “noble lie”. It wasn’t. He could just as easily said, “Please exercise some restraint, we need to preserve the stock of masks for medical use.”
I’ve been trying to come up with an analogy, best I can conjure is…
This is like the governor of Florida telling residents not to put plywood up on their windows before a hurricane. Because they will need it to rebuild after the hurricane.
Just one mask? I figure they would be asking for multiple masks and maybe a hazmat suit
Naw, nothing effective, a second mask and a rabbit’s foot ought to do it.
Another reminder there are too many laws in this country. I can think of so many reforms I’d like to see but none of them will ever happen. The executive branch is too big. Aside from the military, it should be about a thousand people. I hate it so much.
My college, Shawnee State University, is open. In fact, we’ve been meeting in person all this school year. Many classes have switched to online format, but that’s up to the professor. I have had mine meeting in person, because they all have labs that are hard or impossible to do online, and the students really prefer the in-person classes. We do have a lower room capacity, though, so for the larger classes or smaller rooms, that means splitting the class in half and having one half in person and the other watching online on any given day, then they switch. Masks and distance required in the classroom. But it’s working! We had an increase in cases leading up to Thanksgiving, so we did the last week before Christmas break online, but that was the only time we weren’t meeting normally.
Still, we’ve had a 20% drop in first-time freshman enrollment (5% of the student body), and that’s seriously hurting the budget. There’s a very similar drop in many other colleges right now. I’m hopeful that we’ll be able to ease up the classroom capacity restrictions in the fall and that we’ll have an increase in the enrollment.
What I saw was him commenting that it makes sense that two masks would decrease the number of coronavirus droplets that make it through. Whether it’s worth the extra blockage of air depends on how prevalent that new, more contagious strain is, of course. I don’t fault him or others for changing recommendations based on new evidence, which this is. I do fault anyone who was telling us not to wear masks early on because they wanted the supply to go to doctors, but telling us it was just because masks don’t help.
Well, as someone who said something similar, it is true that simple masks generally do not help the wearer. They are only really effective at protecting others from you. N95 respirators will protect people from exposure, but only if worn properly and fit correctly.
I posted my reasons when I shifted to telling people to wear masks. The issue is that Fauci and co. did not explain the change. They operated on the assumption we were all too stupid to understand, just like how the CDC does not consider mask use in determining if you were exposed to COVID-19.
I can tell you right now that wearing multiple masks is going to be horrible for anyone doing heavy activity. It does nothing to protect people against a virus only for them to have a heart attack.
Why not encourage everyone to wear a sombrero, then? After all, this is a dangerous (… sometimes) and very contagious disease, right? There is just about as much scientific evidence that wearing a sombrero will defeat covid. Perhaps we should mandate it.
And that’s the problem right there. The dangerousness of a thing is never actually support for any particular intervention, but we have decided that it is ok to turn our lives upside-down simply because we cannot accept our own limitations and we have to do something. Even if that something is nothing, or worse than nothing.
I don’t do heavy activity in my job as a part-time cashier. But wearing one mask is still uncomfortable/annoying enough at times that I have no intentions of wearing two of them while I’m working unless management tells me I have to. And if stores start requiring double masking, I’ll be searching for places to shop that don’t require it. I suspect those who double mask and/or encourage others to do so are people who don’t have to wear them for extended periods of time – at least not very often.
The reality of the situation is this: These people are shooting from the hip.
https://www.dailywire.com/news/top-infectious-disease-expert-says-double-masking-actually-enhances-your-ability-to-get-infected
Perhaps the most honest anyone ever was, was back in February/March of last year, when they actually utilized their accumulated knowledge and understanding of viruses. They correctly compared covid to the flu, and they correctly warned us that viruses are pretty much always going to do their thing, regardless of our interventions. They cited to the body of studies done, which indicates that masks are all but useless, and they warned us about the immense damage that would be done by locking people down and quarantining the healthy, all things that had never been done before, and for very good reason. There was no reason to assume massive asymptomatic spread (and the lack of asymptomatic spread has now been confirmed by multiple studies); the entire theoretical premise goes out the window when you realize that virtually of the assumptions it depends on have now been confirmed false. (nevermind the mountains of data showing that places with mask mandates have no better outcomes – and more often worse outcomes – than places where people do not mask)
And then it got political, and all of that went straight out the window.
The CDC, when it changed its recommendations, removed the page on their website that cited to all of the studies backing up their previous recommendations about masks. When new studies and data finally did emerge, they all confirmed what we already knew, which is that masks are largely useless (except as protection against bacteria, which is why surgeons wear them, or as protection against viruses, provided those masks are highly-specialized and essentially accompanied by full hazmat protocols), the CDC merely doubled down on what is now a purely political operation. We are now told to ignore the science. In its place, we are seeing the actual publication of theoretical science and modeling that is based on assumptions about the very things the studies claim to support. In the rest of academia, this is called “circular reasoning,” and it would get you laughed out of town. Today, this is being published in The Lancet.
Every time I think we have hit peak-stupid, our government overlords just say: “hold my beer.”
That was yesterday. Today he’s saying there is no evidence two masks are better than one.
The only thing you can count on with Dr Fauci is that over time he will be on every side of every issue.
What amazes me with the mask discussion is the lack of science to support it. Before 2020, the CDC did studies of effectiveness in the real world and concluded that there was not sufficient benefit to recommend masks for influenza. Then sometime during 2020, the CDC flipped. Why? What is the numeric change in transmission rates for Wuhan Lab Flu, when a contagious person wears a surgical mask? cloth mask? N-95? What about healthy person wearing a mask near a contagious person?? All we get is Fauci saying “it would better” and that becoming an edict enforced by guns! WTF?
Oh, there is plenty of science out there. It just says that masks don’t work. And if you want real-world experiments, we have them. Compare California or New York (pretty much 100% mask compliance) to places with no masks (per capita, not direct comparisons). Find places – and there are a lot of examples out there – where similar demographics take different stances on masks, and you see that there is no difference in outcomes. If masks were the silver-bullet some claim, the difference would be undeniable. Even if they just “sort of” worked, there would be an obvious difference. But there is none. There is certainly not enough of a difference to justify that “edict enforced by guns,” but here we are.
Masks serve 2 purposes. 1) they are an emotional crutch for people who are either too stupid or too lazy (or neither, but simply unwilling, for some reason) to engage in even a nominal amount of critical thinking, and 2) they are an extremely useful tool for propaganda, both to remind everyone to be afraid, and to provide an easily identifiable badge of compliance.
This virus is so small, N-95 masks aren’t 100% effective. To prevent the virus from entering your respiratory system, you need something with smaller pores, or no pores at all, like tinfoil or plastic.
There is no ethical way to study whether mask-wearing protects a person from getting infected with the Wuhan Coronavirus. First, you would have to find a venue where you knew that the virus was present, and that is impossible since you cannot see the virus. Then you would have to have two groups of people-a test group and a control group. Could you ever find a control group today who would agree to remain in the venue where the virus was present, without a mask? The test group would all be required to wear a mask at all times (or how could you even determine when the test group would be required to wear a mask? Always? Even while eating, which is impossible? Only while awake? The variables are immense), be under observation 100% of the time, and never allowed to leave the venue for any reason. Would they still be required to be physically distant from others or not? There is simply no way to design or to carry out that sort of study, and until you can, mask-wearing will simply be voodoo medicine.
While I fully agree with your main point, I think it is worth pointing out that the one branch you did not mention, the Administrative State, is larger and arguably more, maybe much more, powerful than any of the other three established by our Founders, who would be appalled at such inanities as the Chevron rule and the non-appealability of so many agency actions and orders.
I disagree. If it is contended that the only way to tell if masking works is by ensuring 100% perfect compliance, then you are already admitting that they don’t work. Something that isn’t possible in a study isn’t possible in real life, either.
Therefore, there is a perfectly ethical and simple way to study whether masks work (although, as I’ve said, whether or not they work is irrelevant to the question of whether the government can or should mandate their use). The protocol is very simple. You take two demographics that are otherwise very similar, and you put masks on one and not on the other. If masks are effective enough to justify their widespread use, that outcome will be very obvious. Interestingly, we already have that data. Is Florida a bloodbath while New York skates? How about Seattle vs. some other city of comparable size where masking is not the norm? There is tons and tons of real-world data that we can look at to see whether, as a public policy measure, this is an effective policy, regardless of whether it is a legal or desirable one.
And that evidence is absolutely clear, which is why our government – along with the mask zealots in our communities – have to resort to using force.
@Hammer,The Yes, only the virus is not at all dangerous for the vast majority, and those who are in danger are in danger from many other sources as well. Masks were simply recognized as essential to the perpetuation of fear. We don’t care, at least not officially, about the endangered among us because if we did our public health guardians would be encouraging them to take steps to improve their health where possible and we would not be imprisoning the voiceless elderly.
True, not 100 percent effective. But that’s not the same as providing no protection. We’re conservatives. We don’t believe in guarantees. Prudent risks are more our style.
There may be no ethical way to do a good prospective study, but there have been a couple of retrospective studies on the actual wearing of masks that seem to show they are of some use. I doubt I could find them very quickly, but I learned of them through Ricochet. One of them involved observers who watched people to see if they were wearing masks, and the other relied on self-reporting. Neither is nearly as as good as a prospective study, but they did seem to provide some evidence that they reduce the incidence of covid-19. It’s not the sort of evidence you would want the FDA to use for evaluating vaccines, but it’s something.
One problem was these studies were thrown in with a bunch of studies on mask mandates, some of them bogus or worse, and it wasn’t easy to sort them out. I should have saved the links in my Evernote, but I’m pretty sure I didn’t. When people say there is no evidence that masks work, they are wrong. It’s not strong evidence, though. When people say there is no evidence that mask mandates work, they might be on firmer ground.
Yes, and as this Mayo Clinic research confirms critical role of masks in preventing COVID-19 infection – Mayo Clinic News Network
shows.
The graph shows percentage of particle counts across various distances of 1 foot to 6 feet when the source, target and both are masked using disposable and cloth masks.
OOPs, editing didn’t allow the graph. Look to comment #31 for it.
Don’t cough or sneeze in people’s faces. And if you’re sick keep your distance and where a mask. Or better yet, stay home if you can.
Though not in this study, don’t forget to wash/sanitize your hands if you’ve touch a contaminated surface.