Mask Mandates Are Constitutional. Here Is Why.
A protester at the Ohio State Capitol advocating against wearing masks. Photo by Paul Becker.
“I’m an American … I have rights!”
Many people who refuse to comply with local and statewide mask mandates unwaveringly declare this statement as their catch-all defense. A recent Brookings Institute study found that 40% of people who refuse to wear masks claim that it is “their right as an American to not wear a mask.” Refusing to wear masks rather than following the Centers for Disease Control and Prevention’s (CDC) recommendation has become a fixture of COVID-era protests. To justify their behavior, protesters claim that the mandates oppress their civil liberties, contending that the government forcing people to wear masks violates the constitutional rights to freedom of speech and equal protection under the law for people with disabilities. Additionally, as President-Elect Biden expresses his wish for more universal mask coverage entering the third wave of the pandemic, people have raised concerns about the federal government’s role in a universal mask mandate, arguing from a 10th Amendment standpoint that the federal government cannot force states to carry out national directives. However, because of the deadly nature of the COVID-19 virus and the effectiveness of masks, mandatory mask-wearing mandates are paramount to public safety. In this case, limiting individual rights is justified in the interest of the common good. Protesters have reason to worry – in times of crisis, rights need to have even more protection from government infringement, but give the non-invasive and temporary nature of mask mandates, mask mandates are not only necessary but constitutional.
Individual Rights
Some of these protesters also argue that mask mandates excessively regulate conduct and oppress the freedom of speech, because the government is forcing people to comply with a prescribed action, rather than letting them have free will. An element to this belief derives from skepticism about the validity of masks and the existence of a pandemic. University of Virginia psychology professor, Dennis Proffitt, argues that the issue of masks has brought up biases that people don’t know they have which affects if they wear them or not. As a result, mixed messaging from leadership has caused uncertainty over the legitimacy of the pandemic and masks. This has prompted push back, some of which has manifested as a violation of the freedom of speech. However, in the thick of a global pandemic, mask mandates are necessary to preserve the safety of the whole community, and as case precedent and previous federal regulations show, that is a burden which is able to overcome absolute individual rights.
In response, supporters of mask mandates cite a United States Supreme Court case from the 1918 Spanish Flu epidemic, Jacobson v. Massachusetts (1905), which established a standard for balancing public health with individual rights. In Jacobson, the Court answered whether Massachusetts could allow municipalities to require that their residents be vaccinated for smallpox. The Court found that Massachusetts had constitutionally exercised state power in order to protect the public health of its citizens and definitively stated, “The answer is that it was the duty of the constituted authorities primarily to keep in view the welfare, comfort, and safety of the many, and not permit the interests of the many to be subordinated to the wishes or convenience of the few.” The decision also advised judges to give deference to governments and public health officials in such cases, holding that health regulations and restrictions must be widely followable and must not discriminate against a certain group.
When balancing individual rights and the safety of the community at large, the Court authorized states to enforce a much more invasive form of protection, a vaccine, than what states mandate today which is simply a face covering. For example, states prioritize the common good over individual rights everyday by requiring public accommodations for smokers in order to prevent the indoor spread of second hand smoke. Here, the health of the public necessitates a limit on an individual’s liberty to smoke inside. Similarly, the proven effect of masks in curbing the spread of COVID-19 supersedes an individual’s liberty to refuse to wear something they consider burdensome.
Additionally, opponents to mask mandates claim that they oppress people protected under the Americans with Disabilities Act (ADA). The CDC has highlighted exceptions for people who can’t wear a mask, including those who have certain disabilities, such as chronic obstructive pulmonary diseases. Under the ADA, individuals with disabilities are entitled to participate in the same goods and services as regularly abled individuals. In order to provide for this right, businesses must provide “reasonable modifications” to their mask policies so that individuals with disabilities can still participate and benefit from the good or service. Modifications may include requesting that people with disabilities wear a shield rather than a mask or allowing the customer to order for curb-side pickup or order online. By following these guidelines, mask mandates reduce the health risk for the community while protecting the rights of people with disabilities. However, these exceptions, as explained by the Northwest Americans with Disabilities Center, must balance the individual rights of those protected by the ADA with the health and safety of employees, other customers, and the community, meaning that even under the ADA, rights can be limited.
Wearing a mask is seen by protesters as a violation of freedom of speech. Photo by Paul Becker.
Another argument is that wearing masks violates an individual’s First Amendment right to the freedom of speech. However, some courts have rejected this argument. In a recent case in the United States District Court for the District of Maryland, KOA v. Hogan (2020), the plaintiffs alleged that wearing a mask was akin to a “sign of capture on the battlefield, and subservience to the captor,” and was, as a result, compelled speech. However, the court rejected the claim that the action of wearing a mask contained a subtextual message and explained that, in the face of the most severe health crisis in generations, “wearing a face covering would be viewed as a means of preventing the spread of COVID-19, not as expressing any message.” Wearing a mask is neither an action that the government unduly compels nor does it express a government-sanctioned message.
Federal Mandate
President-elect Joe Biden’s prioritization of a nationwide mask mandate has also raised concerns about the constitutionality of mask mandates issued on the federal level. Some of the failures of the United States’ handling of the COVID-19 pandemic can be attributed to different regions moving asynchronously, allowing for the virus to move across the country. Scientists from the Health Affairs journal urge for a national mask mandate to create a nationwide standard for fighting COVID-19. A Congressional Research Service report explains that, pursuant to a 10th Amendment interpretation in Murphy v. National Collegiate Athletic Association (2018), the federal government cannot force states to carry out federal directives, which in this case would be to implement mask mandates. However, there are other pathways that the government could use to achieve cooperation from states.
For example, Congress could use the Spending Clause, the power to tax and spend for the “general welfare” found in Article I of the Constitution, to incentivize states to enact a mask mandate that meets federal requirements in exchange for certain federal funds. This path has been used before to “convince” states to enforce certain initiatives, such as by allocating $500 million for states that criminalized not wearing seatbelts in 2005. The Supreme Court affirmed the constitutionality of this strategy in South Dakota v. Dole (1987), where the Court found that Congress could use its spending power to indirectly achieve legislation in pursuit of the “general welfare.”
Using an “incentive” would be permissible as long as Congress provides clear notice of the mask mandate, relates the mandate to the use of federal funds, and does not create the grant so that the federal funds offered are “so coercive as to pass the point at which pressure turns into compulsion.”
The President has less power to accomplish the same goal. Since an executive order doesn’t have power over states, the primary beneficiaries of this action would be federal government buildings. Biden also has power under federal transit law to mandate face coverings on public transportation. However the route that has the furthest reach would be to encourage Congress to tap into their Spending Clause power.
Mask Mandates Are Constitutional
In times of crisis, the protection of individual rights is even more fundamental than in peacetime, because there is no guarantee that circumvented rights will be restored. However, the number of lives that have been saved by mask mandates warrants narrow and temporary limitations. Protesters worry about mask mandates limiting their individual rights and infringing on the power of the states, both of which violate the Constitution, but both concerns pale in comparison to the absolute necessity of mask-wearing to halt the spread of COVID-19. The constitutionality of mask mandates rests in their proven promise to protect the safety of the community, including people with disabilities, and their protection of the freedom of speech by remaining narrow and temporary restrictions. Moreover, the Constitution also provides Congress and the executive with pathways to expand mask mandates to the entire nation.
So, my response to those who use their rights as an argument against wearing masks: Yes, you have rights, but so does the community whose lives depend on it.
Katerina Kaganovich is a Staff Writer at CPR and a freshman at Barnard College studying political science and economics. She is an intern with the New Jersey Attorney General’s Division on Civil Rights interested in American government and jurisprudence.