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:

1. 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.
2. 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.
3. By asserting the right to supersede local measures, 42 CFR 70.2 further violates the Constitution’s limit of Federal power to interstate commerce.
4. 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?