Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Josh Blackman, James Phillips, and John Yoo argue that a federal mandate to wear masks to prevent the spread of coronavirus would be unconstitutional under NFIB v. Sebelius. If Congress cannot force people to buy health insurance, it cannot force people to wear masks. In addition, the federal government cannot justify a mandate on the grounds that people's failure to wear a mask will have a substantial (indeed, devastating) effect on interstate commerce. Wearing a mask is not economic activity and so Congress cannot take those effects into account, no matter how great. (Lopez, Morrison) Hence Congress has no power under the Commerce Clause to require people to wear masks, even if it would promote public health and save the economy. The principle of limited federal government is simply too important.
I beg to differ.
A mask mandate is not a generalized requirement to wear masks at all times. It is a requirement to wear them at certain times and places, and when performing certain activities. And a requirement to wear a mask can be directed either to the person who wears the mask, or to the business or entity that operates the place or facility where a mask must be worn.
How would one draft a constitutional mask mandate under the Commerce Clause? Let me count the ways.
1. First, Congress could regulate people who enter and use businesses and places of public accommodation. It could provide that any person who enters any business or any place of public accommodation that engages in interstate commerce, or that uses goods shipped in interstate commerce, shall wear a mask while within that business or place of public accommodation (including entrances, exits, outdoor areas, and while waiting in line on adjoining sidewalks). Although it is not constitutionally required to do so, the federal government should provide generous exceptions for persons in any place in which no one is likely to be within six feet of anyone else. And it should exempt people living and working in their private houses and apartment interiors.
Note that even if people who enter these businesses do not buy anything, government can still regulate their activities. The federal government, under its Commerce Power, may act to protect the channels of interstate commerce and businesses and places in which interstate commerce is conducted. It could reasonably conclude that the presence of people who pose a threat to public health also pose a threat to these businesses and places of public accommodation. Indeed, for this reason Congress could require that anyone who travels within ten feet of a business must wear a mask. This would cover most sidewalks in business areas. Once again, government should specifically exempt people living and working in privately-owned houses and apartment interiors, because some people may be living within ten feet of a business.
2. Next, instead of directing its regulation at people entering or using businesses, Congress could direct the regulation at the businesses themselves. Thus Congress might provide that any person who owns or operates a business or place of public accommodation that engages in interstate commerce, or that uses goods shipped in interstate commerce, shall enforce a rule requiring the wearing of masks within that business or place of public accommodation (with exceptions for persons who are not within six feet of anyone else).
3. Next, Congress could focus on people who use technologies of travel. It could provide that any person who uses any facility of interstate commerce for travel, whether privately or publicly owned (e.g., a car, a motorcycle, a taxi, a limo, an Uber car, a bus, a subway, a boat, or a plane) shall wear a mask during the entire period of travel. Although it is not constitutionally required to do so, the federal government should provide generous exceptions for persons traveling in small groups or in any place in which no one is likely to be within six feet of anyone else.
4. Finally, Congress could focus on the owners and operators of travel facilities. It could provide that any person who owns or operates any facility of interstate commerce used for travel shall enforce a rule requiring the wearing of masks for persons using that facility (with exceptions as noted above).
None of these mandates pose any problems under recent Commerce Clause decisions like Sibelius, Lopez, or Morrison. Each of these mandates are regulations of activity, not inactivity. They involve people going to places and doing things. They focus on activities traditionally within the federal commerce power. It has long been settled that Congress can pass laws regulating economic activities (including businesses and places of public accommodation), the channels of interstate commerce, instrumentalities of interstate commerce, and persons or things that move in interstate commerce, "even though the threat may come only from intrastate activities." (Lopez) And regulations of interstate commerce can be directed either at individuals who act or move in commerce or at the owners of the places or facilities that individuals use.
These mandates do not cover everything that people do, 24 hours a day. For example, they do not reach many outdoor activities, and they do not regulate people who are staying in their own private homes or apartments, or in the homes or apartments of friends and relatives. But they do not have to reach so far in order to be effective. Finally, the federal government may be required to provide religious exemptions, either under the Religious Freedom Restoration Act or under the Free Exercise Clause. But that is true of many other kinds of federal laws. In short, there is no constitutional difficulty with Congress using its Commerce Power to pass laws that promote and protect the public health and safety.