President Joe Biden has done it again. He’s committed another gaffe. But this comes as no surprise since he acknowledged during a stop on his book tour in 2018 that he was “a gaffe machine,” and has not stopped proving the truth of that statement ever since.
In late December of last year, Biden spoke with state governors on a call regarding potential strategies to manage the continued impact of COVID-19. After a Republican governor spoke about challenges his state was experiencing in responding to the pandemic and stated that he did not want federal solutions to stand in the way of state solutions, Biden unintentionally made the case for federalism when he then said that “there is no federal solution” to the COVID-19 pandemic and declared that it “gets solved at the state level.” And now, earlier this year, on the day after a federal judge struck down the public transportation mask mandate issued by the Centers for Disease Control and Prevention (CDC), Biden told reporters in New Hampshire that “it’s up to them” whether people wear masks on airplanes. So again, what the president unintentionally said was profound, with far-reaching implications.
The mask mandate
Shortly before the presidential election of 2020, Biden and a reporter had an exchange about face masks:
Reporter: “But, sir, you don’t see, you had suggested there would be some sort of federal mandate about masks and now you’re saying you would encourage people?”
Biden: “No, no. No, no. Here’s what I suggested was: I would ask every person in authority. There’s a question whether or not a president, under the Constitution, could mandate everyone to wear a mask. And remember all during the primary I would have a lot of people telling me, I would by executive order do — I am a constitutionalist. You know, you can’t do things the Constitution does not allow you the power to do. What I’d be doing is putting as much pressure as I could on every governor, every senator, I mean excuse me, every mayor, every county executive, every local official, and everyone in business, putting pressure on them, to say: What you’re doing is irresponsible. Make sure you wear a mask and maintain social distancing. And the vast majority of the American people accept that notion.”
After his election, but before his inauguration, Biden challenged Americans to wear a mask for “just 100 days” to help slow the spread of the coronavirus beginning on the first day of his term. Said the president-elect: “Wear a mask for just 100 days. It the easiest thing you can do to reduce COVID cases, hospitalizations, and death. Help yourself, your family, and your community. Whatever your politics or point of view, mask up for 100 days once we take office, 100 days to make a difference. It’s not a political statement. It’s a patriotic act.” (It should be noted that President Donald Trump once tweeted an image of himself wearing a mask and made the comment that it was “patriotic.”) Soon after Biden took office in 2021, a federal transportation mask mandate was issued.
On January 21 — just one day after taking the oath of office — Biden issued executive order no. 13998, “Promoting COVID-19 Safety in Domestic and International Travel.” It required the heads of the executive departments and agencies “to immediately take action, to the extent appropriate and consistent with applicable law, to require masks to be worn in compliance with CDC guidelines in or on: (i) airports; (ii) commercial aircraft; (iii) trains; (iv) public maritime vessels, including ferries; (v) intercity bus services; and (vi) all forms of public transportation as defined in section 5302 of title 49, United States Code.”
On February 3, the CDC issued its infamous mask mandate (“Requirement for Persons to Wear Masks While on Conveyances and at Transportation Hubs”) without allowing the usual public comment because “it would be impracticable and contrary to the public’s health” to delay the mask mandate. The mandate required that “a person must wear a mask while boarding, disembarking, and traveling on any conveyance into or within the United States.” This included public transportation (airplanes, trains, subways, buses, taxis, ride-shares, maritime transportation, trolleys, cable cars) and transportation hubs (commercial airports, bus terminals, commercial vessel terminals, train and subway stations, seaports, U.S. ports of entry, dedicated ride-share pick-up locations).
The mask mandate originally had an expiration date of May 11, 2021. This was then extended through September 13, 2021, then March 18, 2022, and then April 18, 2022. But after 21 states sued the Biden administration in an attempt to get the mandate for travel eliminated, after eight Senate Democrats joined with Republicans to pass a bill rescinding the mandate, and after the mandate was extended for another two weeks (through May 3, 2022), U.S. District Judge Kathryn Kimball Mizelle — a Trump appointee — ruled that the CDC exceeded its statutory authority when it mandated that people wear masks when using public transportation. The Department of Justice appealed the district court’s decision to “preserve that authority for the CDC to have in the future.” Meanwhile, Biden’s comment still stands — “it’s up to them” whether people wear masks on airplanes — even though the White House insisted that it recommended that everyone wear masks on airplanes.
The transportation mask mandate was just one of a myriad of things that the federal government decided to institute or fund that are not authorized by the Constitution. The list is endless: job training programs, a minimum wage, the war on drugs, antidiscrimination laws, public broadcasting, Medicaid, Medicare, student loans, Pell Grants, grants for art and culture, subsidies for scientific and medical research, gun control laws, abortion regulations, welfare programs, price gouging laws, family leave mandates, overtime pay requirements, gambling laws, travel restrictions, food stamps, Social Security, flood insurance, housing vouchers, school breakfast and lunch programs, Head Start, AMTRAK, the TSA, farm subsidies, business regulations, fuel economy standards, space exploration and research, nutrition guidelines.
If any of these things are to exist, they must exist on the state level. As James Madison — the father of the Constitution — so succinctly and eloquently explained about our federal system of government in the Federalist, No. 45: “The powers delegated by the proposed Constitution to the Federal Government, are few and defined. Those which are to remain in the State Governments are numerous and indefinite.” This doesn’t mean that the states should decide to have any of these things. It just means that the federal government has no authority whatsoever to decide to do any of them since they are not among the enumerated powers delegated to the national government.
As far as the Constitution, federalism, and limited government are concerned, state decisions are better than federal decisions.
But as we saw during the COVID-19 “pandemic,” state and local governments can be just as tyrannical as the federal government, especially when it comes to personal decisions. The city of Philadelphia banned all indoor dining at restaurants and indoor gatherings of any size, public or private, of people from different households. According to the National Restaurant Association, more than 110,000 restaurants have permanently closed in the United States because of state and local government restrictions due to the “pandemic.”
But even before the “pandemic,” state and local governments were arresting, fining, and/or jailing people for making personal decisions that they didn’t agree with: using or possessing drugs, engaging in prostitution, illegal gambling, practicing discrimination, price gouging, ticket scalping, not wearing a seatbelt or helmet, selling alcohol before or after a certain time, performing a service without an occupational license, serving alcohol to one’s adult children under 21, engaging in commerce on a Sunday, not recycling, and violating gun control laws.
Such is the nature of government. Governments throughout history have always attempted to prohibit, prevent, and prosecute people from engaging in private, consensual, voluntary, harmless, peaceful activity because they deemed it to be wrong, bad, inappropriate, offensive, sinful, immoral, or just because. The conflict of the ages has always been between individuals who want to do something and governments that don’t want them to do it. And the conflict has always been instituted by government.
But government should never penalize or punish individuals for engaging in private, consensual, voluntary, harmless, peaceful activity that does not aggress against the person or property of others. Only those who commit violence should be incarcerated, and no one should ever be restricted from or restrained for committing a victimless crime. Every real crime needs a tangible and identifiable victim who has suffered measurable harm to his person or measurable damages to his property. The solution to the conflict is a simple one: As long as people don’t violate the personal or property rights of others, and as long as their actions are peaceful, their associations are voluntary, and their interactions are consensual — the government should just leave them alone.
As H. L. Mencken put it, “Let people do whatever they please, so long as they do not invade the right and freedom of other persons to do the same.” And to paraphrase Leonard Read: “Let anyone do anything he pleases, so long as it is peaceful.” Yet, Read went out of his way to make it very clear that the principle of individual liberty is not a license to just do as one pleases:
It is incorrect to think of liberty as synonymous with unrestrained action. Liberty does not and cannot include any action, regardless of sponsorship, which lessens the liberty of a single human being. To argue contrarily is to claim that liberty can be composed of liberty negations, patently absurd. Unrestraint carried to the point of impairing the liberty of others is the exercise of license, not liberty.
So, how does this relate to the comment of Joe Biden? Consider the following.
What if people want to smoke marijuana, swallow pills, snort cocaine, shoot heroin in their veins, drop acid, eat magic mushrooms, consume crystal meth, or try fentanyl? What if they want to buy, sell, cultivate, or manufacture drugs? What if they want to get stoned out of their minds? It’s up to them.
What if people want to gamble? What if they want to gamble even when the odds are stacked against them? What if they want to waste their money? What if they want to play poker for money with their friends or neighbors? What if they want to take out a loan or drain their savings in order to gamble? What if they want to open a casino? What if they want to bet on sports or elections? It’s up to them.
What if people want to engage in prostitution? What if they want to provide sex for money? What if they want to pay for sex? What if they want to risk getting a venereal disease? What if they face the possibility of a divorce if their spouse finds out they hired a prostitute? It’s up to them.
What if people want to sell or drink alcohol early in the morning, late at night, or on a Sunday? What if people want to distill their own spirits? What if people want to sell the beer they brew or the wine they make? What if they want to get drunk with their adult children under 21? It’s up to them.
What if people want to sell things for much more than they paid for them? What if they want to raise their prices during a natural disaster? What if people are willing pay higher prices during a natural disaster to get the things they want? It’s up to them.
What if people want to charge high interest rates on loans? What if people are willing to pay high interest rates in order to take out a loan? It’s up to them.
What if people want to discriminate against others? What if they want to discriminate on the basis of race, color, religion, sex, national origin, sexual orientation, gender identity, disability, physical appearance, pregnancy, facial hair, or clothing? What if their discrimination is illogical, irrational, or nonsensical? What if their discrimination is based on stereotypes, conjectures, prejudice, bigotry, or racism? What if their discrimination is arbitrary, capricious, subjective, or inconsistent? It’s up to them.
What if people want to travel to Cuba, North Korea, Venezuela, Myanmar, China, or Russia? What if they want to spend money in countries that don’t respect the human rights of their citizens? What if they want to vacation in an authoritarian state? What if they want to visit a country that has jails full of political prisoners? What if they want to go to a country that doesn’t allow its citizens to visit the United States? It’s up to them.
What if people want to hire an “illegal immigrant?” What if people are willing to work for less than the minimum wage and not receive any benefits? It’s up to them.
What if people want to smoke tobacco? What if they want to allow smoking in their bar or restaurant? What if they want to advertise tobacco products? What if they want to risk getting lung cancer? It’s up to them.
What if people want to sell a concert ticket for much more than the face value of the ticket? What if people want to pay much more for a concert ticket than the face value of the ticket? It’s up to them.
What if people want to enter competitive eating contests? What if people want to be gluttons? What if people want to eat until they are obese? It’s up to them.
What if people want to sell one of their kidneys? What if they want to sell both of their kidneys, their liver, or their heart upon their death? What if they are willing to pay for an organ to save their life? It’s up to them.
What if people want to open their businesses on a Sunday? What if people want to buy or sell a car on a Sunday? What if people want to skip church and go shopping on a Sunday? It’s up to them.
What if people want to provide a service without getting a government license? What if people want to purchase a service from an unlicensed service provider? It’s up to them.
With freedom comes responsibility. Choosing to engage in addictive, harmful, unsafe, dangerous, unhealthy, immoral, or risky behavior means that the doer is responsible for the consequences of his actions. It is not up to the government or society to pay the bills or prevent people from harming themselves.
Gambling can be financially ruinous, just like getting too many payday loans. Discriminating against people may hurt your business and networking opportunities. If you overdose on drugs or lose your family or your job, then it is your problem. Rehab is expensive, so save your money and don’t expect anyone else to pay for it. People have died after gorging themselves at competitive eating contests. Eat at your own risk. Americans who travel to a country with an authoritarian government travel at their own risk. They can’t expect the U.S. government to send in the Marines should they get in trouble. Abusing alcohol can destroy your family and your health. It may even eventually kill you. If you want to participate in boxing, wrestling, bungee jumping, football, or mixed martial arts, then go right ahead, but make sure you have some money set aside or have health insurance. If you get injured, don’t expect anyone else to pay the bill. Smoking cigarettes might result in lung cancer; chewing tobacco might result in mouth cancer. Don’t even think about trying to sue the tobacco companies when your life is cut short. Want to be a prostitute? Serial killers prey on them. Walk the streets and get in cars at your own risk. Want to raise your prices during a national disaster? Fine, but you may lose customers in the long run. And of course, religious people would say that sinning against God may have eternal consequences.
Joe Biden was right. It should be up to people to decide whether to wear a mask, not the government. But not only should wearing a mask be up to them; as long as people don’t violate the personal or property rights of others, and as long as their actions are peaceful, their associations are voluntary, and their interactions are consensual, it’s up to them what they do, not the government.
This article was originally published in the August 2022 edition of Future of Freedom.