Could Joe Biden challenge Florida, Texas on mask policies? Probably not

Amid a resurgence of coronavirus cases in the United States, the White House has expressed concern about efforts by some Republican-led states to prevent school districts from requiring masks. But the question is: Can they turn that concern into some type of federal action?

In Florida, for instance, the administration of Republican Gov. Ron DeSantis adopted a rule that lets families opt out of locally ordered school mask mandates. The state board of education approved another rule that offers parents vouchers for their children to attend a different school if they encounter pushback on their refusal to use masks. The DeSantis administration also threatened to penalize school officials financially if they bucked the rules. 

And in Texas, Republican Gov. Greg Abbott issued an executive order that bans Texas schools from requiring masks.

These moves led a reporter to ask President Joe Biden on Aug 10 if he had any power to block them.

Biden responded, "I don’t believe that I do thus far. We’re checking that."

We checked with experts on public health law and they agreed: Biden’s options are limited.

"States have primary public health powers," said Lawrence O. Gostin, a Georgetown University law professor. "The president's powers are limited to preventing interstate or international transmission of infectious diseases." 

Since the mask-related policies "operate wholly within the state and not beyond, it would be a stretch for Biden to override these state laws absent specific congressional authorization," Gostin said.

The 10th Amendment to the Constitution says that "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."

This limits federal interference in activities confined to one state, legal scholars say.

"The Supreme Court is unlikely to say that the federal government can prevent the states from limiting the authority of their localities," said Wendy E. Parmet, a Northeastern University law and public policy professor.

Traditionally, these restrictions on federal power have led states and localities to take the lead on "public health measures like quarantine and isolation, school closings, banning smoking in restaurants, and more," said Polly J. Price, a professor of law and global health at Emory University.

If the White House could point to a law passed by Congress that specifically empowers the president, that would help its cause. 

"The president and the administrative officials he can direct to act are limited to exercising authority given to them by Congress," said Lindsay F. Wiley, director of the health law and policy program at American University. 

The most likely source of support for the White House, legal experts say, would be provisions of the Public Health Services Act, which first passed in 1944 and has since been amended. 

But experts say any effort to invoke that law to intervene in state policies would face uncertainty.

"The language from the 1944 act is so general that no one is entirely sure what it might mean," Price said, adding that she is personally skeptical it could be used to justify rolling back anti-mask mandates in the states. 

In fact, the federal government’s powers under the law appear to have weakened during the pandemic. 

On June 29, the Supreme Court declined to strike down a Centers for Disease Control and Prevention moratorium on evictions, but the justice who cast the pivotal vote — Brett Kavanaugh — added that he agreed with the majority only because the order was set to end soon anyway. Kavanaugh made clear that he thought that extending the moratorium any further was unconstitutional if it was done by executive action, rather than by congressional action. 

This was widely interpreted as a Supreme Court majority’s willingness to strike down a similar executive action if it came before the courts in the future.

"While COVID-19 clearly affects interstate commerce, the activity of just existing in public without wearing a mask arguably does not," said Michelle M. Mello, a Stanford University professor of law and medicine.

Combined with other lower-court decisions, Parmet said, the Supreme Court’s stance "suggests that the courts are unlikely to read the act as going so far as to empower the president to override state government decisions."

The only other options for the White House would relate to funding, a tool that the federal government uses often to incentivize certain state policies.

"The federal government could potentially use its power to control spending to nudge states to allow local governments to impose mask mandates," Parmet said. "It could also predicate the allocation of supplies to states that comply with the federal policy."

But, she added, this approach comes with limits. "The withholding of money couldn’t be so great as to be coercive," Parmet said. "So, for example, the federal government probably couldn’t withhold all Medicaid money to a state that didn’t comply, although perhaps it could refuse to fund some specific grants aimed at COVID relief."

In addition, the "optics and ethics might be terrible" for the White House, Parmet said.

"Not sending ventilators to Florida might not move DeSantis," she said, "but it might cause people to die.".

Another option, Gostin said, would be to pay the fines and penalties of businesses, universities or cities that defy the state government. But this would be expensive and would likely require congressional consent to appropriate the funds. 

"These laws are irrational and harm the health and safety of state residents," Gostin said. "But they are lawful."