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https://constitution.congress.gov/constitution/amendment-10/ https://constitution.congress.gov/constitution/amendment-10/ Please cite me where the power to ena

https://constitution.congress.gov/constitution/amendment-10/ https://constitution.congress.gov/constitution/amendment-10/ Please cite me where the power to enact a requirement to wear masks is explicitly granted to the federal government. I'll wait.

Forbo 6y ago
According to the Bar Association, the Commerce Clause and Public Health Service Act is what you're looking for. https://www.americanbar.org/news/abanews/publications/youraba/2020/youraba-april-2020/law-guides-legal-approach-to-pandemic/ https://www.americanbar.org/news/abanews/publications/yourab...
- Impashin 6y ago
  This article makes no claims on the constitutionality of such an act.
  - gamblor956 6y ago
    The PHSA is over 6 decades old, so you need to prove that is unconstitutional.
NoSorryCannot 6y ago
You are being unpleasant. But even short an ability of the federal government to unilaterally require masks, it can exert a lot of soft power on the states by having a unified and full-throated position. The CDC, OSHA, federal funding incentives, and just having persuasive leadership that doesn't politicize compassionate mask wearing.
- jjeaff 6y ago
  Heck, having a president who says masks are important and is seen wearing one in public most of the time and not saying things like "you can wear a mask if you want to, me personally, I'm not going to" would go a long, long way. However, I'm afraid that the cat is already out of the bag and many weak minds have been poisoned that wearing a mask somehow infringes rights or doesn't do anything.
  - dragonwriter 6y ago
    > However, I'm afraid that the cat is already out of the bag and many weak minds have been poisoned that wearing a mask somehow infringes rights or doesn't do anything. Negative belief in at least the current reality of the pandemic (if not the historical reality of the disease itself), as well as in mitigation measures like masking, has become an important tribal identity marker. That's going to be difficult to counteract, and probably doesn't work on a rational level (that is, even if you could convince someone that the overt rationale was wrong, that would be more likely to prompt a shift in rationalization than a shift in belief.)
dragonwriter 6y ago
> Please cite me where the power to enact a requirement to wear masks is explicitly granted to the federal government. Depends on the nature of the mandate. A simple hard mandate (everyone must wear masks in public or be subject individually to federal sanction) may not be authorized, but that's not the only shape of mask mandate possible. A requirement that a state adopt and show adequate enforcement of control measures deemed necessary by the federal government, including (if deemed necessary) a mask mandate with given parameters or be subject to additional restrictions on interstate trade and travel to restrict the spread of disease to other states is absolutely not only within the scope of the Constitutional power of the federal government under the Commerce Clause, but also within statutory powers already granted to the executive branch under that Constitutional power, in the Public Health Services Act and elsewhere.
rzz3 6y ago
They’d probably just dump a justification under the interstate commerce clause like they do with every other federal government overreach.
dsg42 6y ago
I'm going to give you a longer answer, taking your concerns in good faith, since most of the responses you have so far are fairly combative. We need to start by recognizing that, although the Constitution is an important original source in understanding how our government functions, we have over 200 years of Constitutional interpretation that lies on top of it. You are welcome to make a Constitutional argument that goes against the existing jurisprudence, and Constitutional interpretation does change over time, but it does so only slowly. One of the most important principles in Constitutional interpretation is that of stari decisis, or issues which have already been decided. In almost all circumstances, courts adhere to precedence. This isn't always the case, but when you are fighting against the current understanding of the Constitution, you need to realize that you're fighting an uphill battle, and frame your arguments as such. So where are we in our understanding of these issues? First, the Supreme Court has literally ruled that the Tenth Amendment is useless. Specifically, in US v Sprague (1931, SCOTUS ruled that the Tenth Amendment is a "truism" that "added nothing to the [Constitution] as originally ratified."[1] It was later used to create an anti-commandeering understanding, which in this circumstance just means that the federal government can't pass a law that requires states to enforce a federal mask mandate. There might be a public health exception to that though, but that's where the tenth amendment would be relevant. You also need to understand that SCOTUS has repeatedly expanded the commerce clause to cover basically everything. The federal government can pass pretty much any law they want, say it affects interstate commerce, and win. You don't have to like that interpretation, but everyone follows it. It was only during the Rehnquist Court that a few exceptions were carved out, but they're very, very narrow. The most famous example was that the court ruled that the federal government couldn't ban handguns in schools under the commerce clause. But for anything even vaguely interstate, and a contagious virus certainly counts, the federal government is allowed to pass pretty much any law it wants. The courts also tend to be pretty generous towards allowing emergency powers to deal with a genuine crisis. I expect that the federal government could do pretty much anything it wants to deal with COVID. I'm sure they'd allow a national lockdown by executive order right now. A legislative mask mandate would be completely non-controversial from a Constitutional perspective. [1] https://en.wikipedia.org/wiki/Tenth_Amendment_to_the_United_States_Constitution#Judicial_interpretation https://en.wikipedia.org/wiki/Tenth_Amendment_to_the_United_... - Yes, this is Wikipedia, but I don't feel like reading a SCOTUS case to write a HN comment
beisner 6y ago
They could make a mask mandate a requirement for receiving any amount of federal spending in their state. Something similar happened with the drinking age being raised to 21. Although I wouldn’t put it past some state governments to cut off their nose to spite their face at this point...
whoisburbansky 6y ago
This is an amusing ask given the use of the Commerce Clause in the past couple decades to justify everything from civil rights (Heart of Atlanta Motel v. U.S.) to strictly intrastate marijuana trade (Gonzales v. Raich). Doesn't seem that large a stretch to bring a case to the SC claiming that requiring wearing masks is related to interstate commerce closely enough that it would be allowed under the Commerce Clause.
coding123 6y ago
The most SIMPLE explanation for you is the following, and it has nothing to do with Laws. When Trump was given his presidential megaphone he was able to convince a LOT of people to not wear masks by simply not wearing one and then telling people that's fine. At least by taking away the megaphone that's a step in the right direction. Even if there's no specific law that backs him up, that alone may save lives. Second, even if technically not legal, presidential orders are OFTEN followed. It can be challenged in the courts for years but in the mean time, an order like that will probably have the effect of getting at least another 50M masks put on. That's a fucking win. The other thing that is 100% legal, is the executive branch can restrict funding in specific ways if a state does not behave. If I was Biden, I would start there.

Forbo 6y ago

According to the Bar Association, the Commerce Clause and Public Health Service Act is what you're looking for. https://www.americanbar.org/news/abanews/publications/youraba/2020/youraba-april-2020/law-guides-legal-approach-to-pandemic/ https://www.americanbar.org/news/abanews/publications/yourab...

Impashin 6y ago
This article makes no claims on the constitutionality of such an act.
- gamblor956 6y ago
  The PHSA is over 6 decades old, so you need to prove that is unconstitutional.

NoSorryCannot 6y ago

You are being unpleasant. But even short an ability of the federal government to unilaterally require masks, it can exert a lot of soft power on the states by having a unified and full-throated position. The CDC, OSHA, federal funding incentives, and just having persuasive leadership that doesn't politicize compassionate mask wearing.

jjeaff 6y ago
Heck, having a president who says masks are important and is seen wearing one in public most of the time and not saying things like "you can wear a mask if you want to, me personally, I'm not going to" would go a long, long way. However, I'm afraid that the cat is already out of the bag and many weak minds have been poisoned that wearing a mask somehow infringes rights or doesn't do anything.
- dragonwriter 6y ago
  > However, I'm afraid that the cat is already out of the bag and many weak minds have been poisoned that wearing a mask somehow infringes rights or doesn't do anything. Negative belief in at least the current reality of the pandemic (if not the historical reality of the disease itself), as well as in mitigation measures like masking, has become an important tribal identity marker. That's going to be difficult to counteract, and probably doesn't work on a rational level (that is, even if you could convince someone that the overt rationale was wrong, that would be more likely to prompt a shift in rationalization than a shift in belief.)

dragonwriter 6y ago

> Please cite me where the power to enact a requirement to wear masks is explicitly granted to the federal government. Depends on the nature of the mandate. A simple hard mandate (everyone must wear masks in public or be subject individually to federal sanction) may not be authorized, but that's not the only shape of mask mandate possible. A requirement that a state adopt and show adequate enforcement of control measures deemed necessary by the federal government, including (if deemed necessary) a mask mandate with given parameters or be subject to additional restrictions on interstate trade and travel to restrict the spread of disease to other states is absolutely not only within the scope of the Constitutional power of the federal government under the Commerce Clause, but also within statutory powers already granted to the executive branch under that Constitutional power, in the Public Health Services Act and elsewhere.

rzz3 6y ago

They’d probably just dump a justification under the interstate commerce clause like they do with every other federal government overreach.

dsg42 6y ago

I'm going to give you a longer answer, taking your concerns in good faith, since most of the responses you have so far are fairly combative. We need to start by recognizing that, although the Constitution is an important original source in understanding how our government functions, we have over 200 years of Constitutional interpretation that lies on top of it. You are welcome to make a Constitutional argument that goes against the existing jurisprudence, and Constitutional interpretation does change over time, but it does so only slowly. One of the most important principles in Constitutional interpretation is that of stari decisis, or issues which have already been decided. In almost all circumstances, courts adhere to precedence. This isn't always the case, but when you are fighting against the current understanding of the Constitution, you need to realize that you're fighting an uphill battle, and frame your arguments as such. So where are we in our understanding of these issues? First, the Supreme Court has literally ruled that the Tenth Amendment is useless. Specifically, in US v Sprague (1931, SCOTUS ruled that the Tenth Amendment is a "truism" that "added nothing to the [Constitution] as originally ratified."[1] It was later used to create an anti-commandeering understanding, which in this circumstance just means that the federal government can't pass a law that requires states to enforce a federal mask mandate. There might be a public health exception to that though, but that's where the tenth amendment would be relevant. You also need to understand that SCOTUS has repeatedly expanded the commerce clause to cover basically everything. The federal government can pass pretty much any law they want, say it affects interstate commerce, and win. You don't have to like that interpretation, but everyone follows it. It was only during the Rehnquist Court that a few exceptions were carved out, but they're very, very narrow. The most famous example was that the court ruled that the federal government couldn't ban handguns in schools under the commerce clause. But for anything even vaguely interstate, and a contagious virus certainly counts, the federal government is allowed to pass pretty much any law it wants. The courts also tend to be pretty generous towards allowing emergency powers to deal with a genuine crisis. I expect that the federal government could do pretty much anything it wants to deal with COVID. I'm sure they'd allow a national lockdown by executive order right now. A legislative mask mandate would be completely non-controversial from a Constitutional perspective. [1] https://en.wikipedia.org/wiki/Tenth_Amendment_to_the_United_States_Constitution#Judicial_interpretation https://en.wikipedia.org/wiki/Tenth_Amendment_to_the_United_... - Yes, this is Wikipedia, but I don't feel like reading a SCOTUS case to write a HN comment

beisner 6y ago

They could make a mask mandate a requirement for receiving any amount of federal spending in their state. Something similar happened with the drinking age being raised to 21. Although I wouldn’t put it past some state governments to cut off their nose to spite their face at this point...

whoisburbansky 6y ago

This is an amusing ask given the use of the Commerce Clause in the past couple decades to justify everything from civil rights (Heart of Atlanta Motel v. U.S.) to strictly intrastate marijuana trade (Gonzales v. Raich). Doesn't seem that large a stretch to bring a case to the SC claiming that requiring wearing masks is related to interstate commerce closely enough that it would be allowed under the Commerce Clause.

coding123 6y ago

The most SIMPLE explanation for you is the following, and it has nothing to do with Laws. When Trump was given his presidential megaphone he was able to convince a LOT of people to not wear masks by simply not wearing one and then telling people that's fine. At least by taking away the megaphone that's a step in the right direction. Even if there's no specific law that backs him up, that alone may save lives. Second, even if technically not legal, presidential orders are OFTEN followed. It can be challenged in the courts for years but in the mean time, an order like that will probably have the effect of getting at least another 50M masks put on. That's a fucking win. The other thing that is 100% legal, is the executive branch can restrict funding in specific ways if a state does not behave. If I was Biden, I would start there.