A Joe Biden presidency could mean a federal mask mandate. The Democratic presidential nominee has included such a mandate as part of his pandemic plan. Could he actually do it, though?

States certainly have the power. But there are essentially two opposing legal views at the federal level:

The no way, not even through the Interstate Commerce Clause view

Writing for the Orange County Register, two California law professors spelled out why they believe the president and likely not even Congress could apply a blanket mask mandate.

There’s no presidential power: They argue a mandate does not fall within the range of a president’s executive order power and there is no Congressionally passed law for a president to enforce.
A limited Congressional mandate: The Interstate Commerce Clause, if Congress is interpreted as having power over any intrastate activity with a wide economic effect, could be used. But the professors note that the Supreme Court has backed away from such a wide interpretation in recent years.

The maybe, if you consider an obscure health law view

Section 361 of the Public Health Service Act allows the Secretary of Health and Human Services “to prevent the introduction, transmission, or spread of communicable diseases from foreign countries . . . ”

The president, according to constitutional scholar Kevin Wagner, could work through the HHS to enact the mandate. However, it would likely create a court challenge.

😷 Is a federal mask mandate legal?