Congress needs to pass a law for the government to impose a federal mandate. The President cannot do it via executive order.
At a campaign event on September 16, 2020, Democratic presidential nominee Joe Biden said he believed that he had the legal authority to impose a nationwide mask mandate if elected president. He said, "Our legal team thinks I can do that, based upon the degree to which there's a crisis in those states, and how bad things are for the country."
While Biden has emphasized on multiple occasions that a mask mandate can go a long way in curbing the spread of coronavirus, Trump has refused to implement a federal mask mandate. However, Trump favors allowing governors to decide whether masks should be made mandatory at the state level, CNBC reported. In August, Biden and his running mate, Kamala Harris, had called on governors to issue mask mandates to fight the pandemic.
The mask issue has been brought up multiple times by the two leaders in their respective election rhetoric. While Trump mocked Biden for wearing masks and denounced the latter's assertions about the benefits of wearing masks, Biden has criticized the Trump administration for not emphasizing the importance of masks for stopping the spread of the virus.
Axios reported on August 4 that 34 states across the U.S. had implemented mandates for mask-wearing in public. Though mask mandates are being implemented at the state level, the plausibility of enforcing it at the federal level continues to remain shrouded in doubts. The Journal of American Medical Association stated in an editorial published on August 4, 2020, that although a federal mask mandate may appear to be an attractive policy, it could encounter legal challenges, be challenging to enforce, and further politicalize wearing masks.
According to a report published by the Congressional Research Service, there are no existing federal laws that explicitly address mask wearing for public health purposes. Still, certain current authorities could potentially form the basis for such executive action. Section 361 of the Public Health Service Act (PHSA) grants the Secretary of Health and Human Services—delegated in part to the CDC—the authority to make and enforce regulations 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.' CDC's exercise of this authority to issue regulations mandating the use of masks in circumstances that would prevent the foreign or interstate transmission of COVID-19 would nevertheless be restricted by the Constitution and other generally applicable statutory requirements- such as the Administrative Procedure Act or the Religious Freedom Restoration Act of 1993. It explained that it is difficult to predict whether courts would conclude that the CDC's authority under section 361 would extend to the nationwide mandating of face masks.
The CRS report further explains that with respect to the Congress, in the absence of an explicit federal law, the Spending Clause and the Commerce Clause of the Constitution are two potential sources of such authority. The Spending Clause empowers Congress to tax and spend for the general welfare. Under this authority, Congress may offer federal funds to nonfederal entities and prescribe the terms and conditions under which the funds are accepted and used by recipients. This power is generally expansive, but funding conditions, when applied to the states, are subject to certain limitations. Applying this authority in the context of a mask mandate, Congress could incentivize states to enact a mask mandate meeting specific federal requirements by imposing it as a condition of receiving certain federal funds.
The Commerce Clause grants Congress the power to regulate commerce with foreign Nations, and among the several States, and with the Indian Tribes, the report elaborates. Under this, Congress can regulate channels of interstate commerce, like roads and canals, persons or things in interstate commerce, and activities that substantially affect interstate commerce. While Congress's authority under the Commerce Clause is expansive, there exists a discrete limit to this authority—that Congress cannot compel individuals to engage in commercial activities. A broad mandate like one that requires individuals to wear masks may be particularly challenged because it could be construed as compelling individuals to wear masks, which is not a commercial activity.
Although these laws could give the executive branch the ability to enact a mask mandate using powers it is granted during public health emergencies, the report highlighted that federal enforcement of such an order might be difficult to implement. It said that enforcing mask mandates has been a challenge even for states, which can leverage their state and local law enforcement apparatus to enforce such mandates(typically through ticketing and fines). This general enforcement apparatus, however, is not available to the federal government, which lacks states' general police power and cannot commandeer state officers to carry out federal directives, risking enforcement gaps in the context of federal public health regulations. CRS explained that even the CDC, which is empowered under Section 361 of the PHSA to issue quarantine and isolation orders to prevent the spread of communicable, has no law enforcement apparatus to enforce such orders independently.
This indicates that each body, with the power to implement a federal mask mandate, is faced with constitutional limits. An article published in Reason stated that Constitutional limits do not guarantee any particular outcome, but they do say who gets to make the decisions. The president can do some things on his own, but others require congressional action. Congress can legislate in certain areas, based on its enumerated powers, but everything else is 'reserved to the States respectively, or to the people,' as the 10th Amendment clarifies. States have broad police power, but it is constrained by the constitutional rights they are bound to respect.
Corroborating the above, two professors from Chapman University and the University of California Berkeley wrote in the Orange County Register that the federal government doesn't have the authority to enact a federal mandate and that public health and safety are supposed to be and always have been the domain of state governments. For the government to impose a federal mandate, it has to be passed into law by Congress. The president does not have the authority to mandate face coverings nationwide via executive power. The COVID-19 pandemic has given rise to a lot of potentially dangerous misinformation. For reliable advice on COVID-19 including symptoms, prevention and available treatment, please refer to the World Health Organisation or your national healthcare authority.