I Don't Want To, And You Can't Make Me: Policy And Legal Battles Over Mask Mandates During The Pandemic

Abstract

This article explores the policy and legal debates over mask mandates during the COVID-19 pandemic.  The article explains why many Americans opposed mask mandates so strongly that they protested in the streets and filed lawsuits to overturn the mandates.  The article then examines the wide variety of reasons given for opposing mask mandates.  While those arguments were largely unsuccessful during the early stages of the pandemic as state and local governments imposed mask mandates throughout the country, they proved more persuasive later in the pandemic as governors in several states rescinded their mandates and issued orders forbidding local governments and school boards from issuing their own mask mandates.  

The article next relates the legal battles that blossomed in state and federal courts over the authority of governmental entities to issue mask mandates and over the constitutionality of those mandates as they applied to businesses, religious institutions and K-12 schools.  With very few exceptions, both state and federal courts found adequate authority in state statutes for mask mandates issued by governors, state health officials, local governments, and school boards, and they consistently rejected constitutional challenges to those mandates.  The governors’ orders precluding local mask mandates generally survived judicial review in state courts, but received mixed reviews in federal courts when challenged under federal disability statutes.  The mask mandates issued by the Biden administration likewise received mixed reviews in the federal courts as they differed over how to apply the Supreme Court’s recently articulated “major questions” doctrine to analyzing the authority of federal agencies to issue mask mandates in a pandemic.

Finally, the article examines the implications of the mask mandate litigation for the epidemics and pandemics that are certain to arise in the future in a world in which lockdowns and quarantines are unlikely to stop the spread of airborne pathogens and masking may be the most effective way to prevent massive illness and death.  Future mask mandates issued by state and local governmental entities are likely to survive judicial scrutiny, but recent judicial hostility to federal agency assertions of broad statutory powers suggests that congressional action will be necessary to ensure that federal agencies have adequate authority to issue mask mandates for interstate transportation and federally sponsored assistance programs.

Keywords: COVID-19, Health Regulation, Mask Mandates