Extremely frustrated over the fact that many Americans still refuse to wear masks in the midst of the coronavirus crisis, in an editorial the Los Angeles Times has come out today in favor of a federal mandate on mask wearing.
Pointing out that the “United States is a confusing mess of patchwork policies” regarding mask wearing, the Times’s editorial board is calling on “the president and Congress to unite behind a clearly articulated national policy on the use of face masks” and “not some namby-pamby maybe you should message.”
So, what does the Times propose specifically? Here is its proposal:
The right federal policy would be to have all states, even those where COVID-19 cases are comparatively infrequent at the moment, adopt face-covering requirements immediately. How the states enforce the mandates should be left to them, but the national policy should make it clear that the federal government will use its budgetary authority to twist the arms of recalcitrant governors or state legislators.
That sure sounds like “namby-pamby” to me. Why not simply make it a federal felony to fail to wear a mask, enforced by criminal prosecutions, convictions, incarcerations, and fines in federal court?
Why go the indirect route of requiring states to impose and enforce a federal mask mandate? Why use a threat of a cut-off of federal aid to the states as a way to force state officials to enforce the federal mandate?
My hunch is that the reason for the Times’s weak-kneed, indirect approach to mask-wearing and enforcement is that the paper’s editorial board knows that there is no constitutional authority for the federal government to be engaging in the business of mask-wearing. Rather than addressing directly that discomforting legal reality in its editorial, the Times figures that it can avoid the constitutional problem by simply coming up with an indirect, namby-pamby way for the federal government to force people to wear masks.
It’s not unusual of course that during crises or emergencies people forget what the Constitution is all about. It is a document that severely limits the power of federal officials. That was the bargain struck after the Constitutional Convention in Philadelphia: The American people approved calling the federal government into existence but only on the condition that its powers would be limited to those enumerated in the Constitution.
At the risk of belaboring the obvious, there is no power in the Constitution permitting the federal government to force people to wear masks. For that matter, there is no power given the federal government to involve itself with any matters relating to healthcare.
Statists might well say, “But Jacob, the Framers should have delegated such powers to the federal government.” That may well be, but the fact is that they didn’t. So long as no such powers are delegated, they cannot lawfully be exercised.
Of course, statists can always go the constitutional amendment route to grant such powers to the federal government. But until that day, the federal government lacks powers to do things that the Constitution does not empower it to do.
Statists might exclaim, “But Jacob, the Framers didn’t intend that the Constitution apply in a crisis or emergency!”
Oh, but they did. They understood full well that crises and emergencies have always been the time-honored way by which people lose their rights and liberties at the hands of their own government. That’s why the Framers and our American ancestors did not insert a crisis or emergency exception in the Constitution or the Bill of Rights.
The good news is that by calling for an indirect, namby-pamby federal mask mandate on state officials, the Los Angeles Times’s editorial board is implicitly acknowledging that a federal mask mandate imposed and enforced directly on the American people would violate the Constitution. The bad news is that the Times fails to recognize that its indirect, namby-pamby federal mask mandate would do the same thing.