With COVID-19 numbers surging around the nation, President-elect Joe Biden is outlining plans to help reverse the tide in the pandemic, including getting more Americans to wear masks.
Convincing a larger percentage of the U.S. to wear masks will take more than mandates, experts told National Journal. They suggest that Biden needs to shift the conversation around masks at the top levels of government. He will be entering office after President Trump spent months sending mixed and often negative messages about mask wearing.
Biden says he wants to work with governors and mayors to implement mask mandates nationwide, although some Republican officials have been resistant to impose such requirements. He has also floated placing mandates on federal buildings and interstate transportation.
Legal and public-health experts told National Journal that some mandates—in federal buildings, for example—could be useful, but that Biden needs to take other important steps to convince Americans to wear masks, including providing consistent and accurate messaging.
Mask mandates on the state and local levels have seen court challenges, noted Nicolas Terry, a law professor at Indiana University.
“The best bet is for Biden and less-radicalized states, governors, state legislatures, to coax people into this rather than try to force them,” Terry said.
Terry added that Biden should be going back to “the original Public Health 101 playbook that was never used by the Trump administration, which is: You are transparent, you are consistent, you are truthful. We desperately need to get back to that.”
Incentivizing good behavior rather than forcing people to take up masks is a better strategy, said Gregg Gonsalves, assistant epidemiology professor at the Yale School of Public Health. He floated the idea that Biden could make it easy for people to wear masks by ensuring they are readily available.
“What he could do is send out a packet of 50 masks that, you know, cost $20 or even more, to every American household. … These masks need to be ubiquitous,” Gonsalves said.
He added that complying with a mandate to wear masks could be hard for people struggling financially. “If you have to make a choice between food or a mask, you’re already asking people to make hard choices, particularly for people who are trying to make ends meet,” he said.
Issuing mandates for federal buildings could bolster Biden’s message about wearing masks. “Anything involving federal property and federal employees and people going into federal buildings—that’s a no-brainer,” said Scott Burris, director of the Center for Public Health Law Research at Temple University. “That’s definitely enforceable, it’s legal, and it is a good example. They’re modeling the behavior we’d like to see.”
Burris said the administration could require masks for interstate transportation, but enforcement would be trickier. “The [Centers for Disease Control and Prevention] doesn’t have people at truck stops making sure that everybody getting out of their trucks is wearing a mask,” he said.
The president-elect is also calling on all governors to implement mask mandates in their states. Although some Republican officials are not open to imposing mandates, University of Michigan health law professor emeritus Peter Jacobson pointed out that other governors who initially did not issue mandates have since taken them up. Republican Govs. Greg Abbott of Texas and Gary Herbert of Utah have imposed statewide mask requirements in the last few months.
“I think what we’ve seen is more willingness among Republican governors to adapt to the virus and not be entirely resistant to a public-health message," Jacobson said. "… It’s an indication that most governors are going to cooperate,” he said.
Biden on Monday praised Republican governors who have issued mask mandates, including Herbert and North Dakota Gov. Doug Burgum, who issued face-mask requirements last week. “I compliment the governors who’ve stepped forward, who have been stepping forward, but also the Republican governors who stepped forward,” he said.
But if not all governors end up heeding Biden’s call, trying to override them by issuing a nationwide mask mandate would likely attract political pushback and legal action, experts said. Biden has not talked about issuing a nationwide mask mandate, but some legal experts have contemplated whether this could be an option.
Such a mandate, “although potentially theoretically possible, might face a lot of legal challenges,” said Wendy Parmet, a law professor and director for Northeastern University’s Center for Health Policy and Law.
Parmet said there isn’t a clear way to enforce a national mask requirement. “We’re not going to start sending out the FBI to round up people who are not wearing masks,” she said. “I personally think that the nudging impact of a mandate at the federal level might be undermined by the almost inevitable political backlash and potential litigation quagmire.”
To get Americans to take up face coverings, the federal government must constantly message and model the use of masks, she said. “The problem is that mandates can help nudge people, but they could also backfire."