Biden’s Mask Mandate Retreat Is a Hopeful Sign

“If I’m your president,” Joe Biden promised at the Democratic National Convention last summer, “on Day One we’ll have a national mask mandate.” Now that Biden is being sworn in as president, his policy has changed from a general requirement to an executive order that applies only on federal property and interstate transportation.

While supporters of a nationwide face mask mandate to combat COVID-19 may be disappointed, constitutionalists should be pleased. The switch is a hopeful sign that Biden acknowledges limits to presidential power, even during a public health emergency.

Until he backtracked in September, Biden had been promising that he would “do everything possible” from “an executive standpoint” to “make it required that people had to wear masks in public.” Outgoing President Donald Trump criticized that plan, saying Biden “wants the president of the United States, with the mere stroke of a pen, to order over 300 million American citizens to wear a mask.”

Trump noted that Biden “does not identify what authority the president has to issue such a mandate.” He warned that it would violate federalism by “stepping on governors throughout our country.”

As Biden now admits, Trump was right. Yet Trump’s defense of constitutional limits sat uneasily with his administration’s nationwide moratorium on evictions, which the Centers for Disease Control and Prevention (CDC) purported to impose in September under the authority granted by the Public Health Service Act.

A regulation issued under that statute says the CDC’s director may “take such measures” he “deems reasonably necessary” to stop the interstate spread of communicable diseases, “including inspection, fumigation, disinfection, sanitation, pest extermination, and destruction of animals or articles believed to be sources of infection.” The CDC argued that evicting tenants who fail to pay their rent would