Senator JD Vance (R-OH) is introducing a Senate bill that would effectively ban federal officials, including the president, from ordering any renewed mask mandates, for COVID or anything else.
Ohio Republican Sen. JD Vance will introduce legislation Tuesday to crackdown on the ability by the federal government or commercial airlines to force Americans into wearing face masks amid a string of new coronavirus variants.
Titled the Freedom to Breathe Act, the legislation, if passed and signed into law, would prevent President Biden and federal agencies from implementing face mask requirements for public transit passengers or students in schools until Dec. 31, 2024.
Additionally, Vance’s office said the measure would prevent federal spending from being used to propose face mask requirements or force Americans to wear face coverings.
There’s little doubt that there are some in government who would happily bring mask mandates back; schools and businesses, as well. Mask mandates are broadly unpopular, although one still sees the occasional individual walking outside alone or alone behind the wheel of their car while wearing a mask.
Previewing the measure, Vance’s office said the bill would:
- Prohibit any federal official, including the President, from issuing an order requiring individuals to wear a mask or other face covering on any passenger flight in the U.S. national airspace system, on public transit, or in school (primary, secondary, and colleges);
- Block Commercial Air Carriers, public transit authorities, and all educational institutions from refusing service to anyone who declines to wear a mask or other face covering;
- Prevent the Secretary of Health and Human Services from requiring plane or train passengers and students to wear a mask or face covering in response to a public health emergency;
- Restrict federal spending to propose, establish, implement, or enforce a mask requirement on airline and public transit passengers and students;
- Require all agencies issue new and revised guidance within 90 days of enactment to implement the law and preempt all other laws or guidance contrary to the Act.
Looking at this from a constitutional standpoint, it appears Senator Vance is on mostly solid ground.
The first bullet restricts the president or any other executive official at the federal level from mandating masks and/or face coverings; since, arguably, these officials have no constitutional authority to do so, this seems appropriate.
The second bullet blocks mask mandates on either subsidized or outright government-controlled transit and in the schools, that also receive federal funds; were these institutions wholly private (as they really should be) then Congress would have no authority here. But subsidized they are, and so Congress can attach strings to those subsidies.
The third bullet seems much of a part with the first, while the fourth lays in the purview of spending and is really in the province of the House of Representatives, but they would have to also pass this measure. The final bullet is boilerplate; requiring federal agencies to submit compliance plans is routine enough.
The effectiveness of masks in preventing the spread of COVID is widely disputed. What should not be in dispute is that the federal government does not have any constitutional authority to order any such use. A CDC mandate requiring masks on commercial airplanes and other transit was struck down in April of 2022 and later rendered moot by the 11th Circuit Court of Appeals following the Biden Administration’s ending of the COVID emergency. The problem here is that in rendering the original lawsuit moot, the 11th Circuit effectively left the issue undecided, raising the possibility of another administration or agency attempting a similar mandate in the future.
Whether or not the Vance bill goes anywhere, and honestly its prospects in the Democrat-controlled Senate are bleak, the intent is worth considering. Masks have increasingly become something of a talisman – a talismask, if you prefer – indicating that the wearer is willing to submit to the authority of a bureaucrat. The ability to easily identify such people seems as good a reason as any to keep masks on the market. But mandates? No. The Constitution gives the executive branch no such power. Senator Vance is correct to make the effort, even if it is bound to be mostly a gesture – at least, until, possibly, and with a big helping of luck, January of 2025. If the GOP should capture the Senate in the 2024 elections, then Senator Vance’s bill will, obviously, stand a much better chance of success.
The entire text of the proposed bill can be read here. Senator Ted Cruz (R-TX) submitted a similar bill in January of 2023, although Cruz’s bill stopped at nullifying existing executive orders regarding masking.
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