As the capital moves into lockdown here in our era of unrest, President-elect Biden attempts Wednesday a shift in tone. But his general talk of healing and unity will redound into barriers and quickly splinter, as the hard reality of his policy proposals and our ideological division come into sharper relief. His plan is to marry that appeal for unity to the gravity of the coronavirus and have that shared purpose of battling it bind us in the manner that Biden asks. Coronavirus – now of all times – is wreaking its worst havoc, and I’m writing this piece despite heavy fatigue myself 14 days into a persistent battle with COVID-19.
Of the measures President-elect Biden is expected to implement soon upon arrival in office, any number of mandates and bans make the list. Yet while the administration accepts that a national mask mandate implemented via that unfortunate phrase ‘executive action’ is out of bounds, Biden is shifting to areas he claims are within federal authority under existing law and precedent. This includes, critically, a ban of interstate travel for those not wearing masks. Not only is this bad policy, but the incoming president’s claims rest upon inappropriate assumptions of authority and a never-before-exercised mass isolation and quarantine power.
As we move towards a full year of restrictions and lockdowns, we’ve learned that public health authority, especially when exercised by the states, not only naturally waxes in times of crisis, but is granted by courts the type of latitude that sorely tests the definitions of words like deference and scrutiny. The federal government has lesser but not insignificant powers too, delegated primarily through the Public Health Services Act (PHSA) of 1948 and the Stafford Act. What Biden will likely rely on for his travel ban is authority claimed by HHS and executed by the CDC director based on very-late-in-the-game Obama administration regulations entered into the Federal Register January 2017. Novel interpretations of the PHSA, these rules were likely a response to criticism over their handling of Ebola, blame cast on the CDC during that crisis, and the accompanying detainment and repatriation controversies that made headlines back then.
The regulations go further than previous practice in that they make clear this is not implementing guidance for states, these are authorities to be exercised by the CDC Director. Further, and more importantly, they apply not to individuals but to groups of Americans en masse and appear to collapse quarantine rules meant for entry into the U.S. with the interstate travel of Americans already residing domestically. The conflation of those sets of rules includes the CDC Director’s right to order the temporary detention of individuals encountered while traveling with limited due process protections.
This is not an argument that some scary mass detention policy is on the way, this is bad policy absent that type of fearmongering. Absent some unlikely plan to screen cars and trucks crossing state lines for mask-wearing, where the rubber meets the road, or more accurately the runway, is at our airports. In this regard, the administration’s mandate will have little practical effect as airlines require passengers to wear masks already. So, the public health benefit is likely to be minimal, and yet the mandate relies on a massive presumption of federal government power untested in the courts. Put more simply, the constitutional authority to ban the state-to-state travel of citizens by the federal government has little, if any, meaningful precedent, and this is a dangerous exercise in federal power at exactly the wrong time. Americans are not meant to be ruled this way, even during a time of emergency.
At a base political level, this will require time and political capital that could be used on increasing vaccine acceptance in an administration already signaling it’s willing to let longstanding partisan fights like the minimum wage gummy up its attempts at action on COVID. Biden is overestimating his hand, and his own rhetorical and political talent. The combination of his folksiness, the unquestioning support of elite opinion-setters like Axios and The New York Times, and all of Hollywood and pop culture rallying behind him equate to much less persuasive power than he’s presuming.
Two paragraphs above I used the adjective dangerous; I do not do so lightly. This is an unnecessary use of federal power exercised upon a population already chafing under federal authority with opposition movement names like Tea Party, Occupy, and The Resistance. Now is not the time to invest in a novel assumption of federal authority with little practical effect other than public signaling. A ‘100 Day Masking Challenge’ that includes this travel ban will generate more backlash than benefit.