Biden wants to implement a nationwide mask mandate, but can he do it without legal pushback?
By Arsenio Toledo // Dec 07, 2020

Democratic presidential nominee Joe Biden has officially called for a national mask mandate to fight against the Wuhan coronavirus (COVID-19) pandemic. However, according to two professors from Northeastern University, even if Joe Biden were to be elected president, he still would not have the legal authority to order people to wear face masks.


“There's a lot a president can do, but can he just sign a piece of paper that says, ‘Thou shalt wear masks or else?’ No,” said Wendy Parmet, professor of law and director of Northeastern's Center for Health Policy and Law.

Back in August, Biden said that governors should enact mask mandates. Parmet believes that this was both a legal directive and an attempt to convince people that wearing masks is important.

This is just one of the many ways Biden can mandate mask-wearing. If he were president, Biden could also force the Centers for Disease Control and Prevention (CDC) to issue a mask order, similar to how the CDC was able to issue a moratorium on evictions.

However, Parmet adds that, if Biden did try to get the CDC to issue a mask mandate without any kind of congressional action, it will definitely be challenged and potentially stricken down in court.

“The goal here is not to pass a law,” said Parmet. “The goal is to be supportive of changing norms. You want to normalize mask-wearing like you normalize brushing your teeth.”

Parmet's colleague, Patricia Illingworth, a professor of business and philosophy, agrees. Illingworth believes that, if Biden were to issue a nationwide mask mandate, it would be seen as a serious attack on individual rights and freedoms.

“From their perspective,” said Illingworth, “they think ‘The state is demanding that I do something? They have no right to do that.’”

This can be seen in several states that have issued mask mandates. When the Republican governor of Utah, Gary Herbert, announced a mask requirement, protests broke out outside of the governor's mansion in Salt Lake City. Gov. Brian Kemp of Georgia has also seen some pushback after he relented on his previous opposition to mask orders by giving local jurisdictions more room to require masks in certain spaces.

Illingworth also believes that Biden will not be able to mandate masks, however, she does believe that he will be able to promote its use.

If Biden were to become president, Illingworth believes multiple options are available to him, such as ordering federal employees to wear masks while on duty, or coaxing people into wearing masks by framing it as a duty to America.

“We have not had a massive public service announcement campaign about the virus as we have had about other issues once upon a time,” said Parmet. “That's something a president can easily do.”

Several governors have already agreed to a mask mandate in January

There are already signs that Biden will attempt to avoid issuing an executive order mandating mask-wearing. During a meeting with several state governors on Thursday, Nov. 19, Biden said that wearing masks “is not a political statement.”

“It is a patriotic duty,” he said during the meeting. He reiterated this line of messaging during a press briefing right after. “It's about patriotism, it's about being patriotic, it's about saving lives.”

Biden also announced during his meeting that he and a group of leading governors have already agreed to implement a national mask mandate in January. This meeting included the National Governors Association's executive committee, which includes prominent Republican governors such as Charlie Baker of Massachusetts, Gary Herbert of Utah, Larry Hogan of Maryland and Kay Ivey of Alabama.

It is unclear if these Republican governors have agreed to support Biden's plan to implement a nationwide mask mandate.

Learn more about federal, state and local policies regarding the mandatory wearing of face masks by reading the latest policy-related articles at

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