COVID-19 and mask mandates: What we can and can’t control

Did you know the United States government can’t actually enforce a nationwide speed limit? Seriously, I didn’t know this. The 55 MPH limit was something I vaguely remember from childhood, right on down to all the speedometers marking that number in its own color (usually red) to draw attention and denote special significance. I figured that was the deal and law of the land by way of the Supremacy Clause of the Constitution, which shorthand states that federal law overrides state law if conflict exists.

While that much is true, the issue still boils down simply to enforcement – it’s not so much that there’s any question of legality, but difficulty in ensuring a mandate is followed. The government has the power to issue a new law, but smaller jurisdictions – states, counties, cities, etc. – are not held to any specific legal requirement to enforce it.

The polarization over COVID-19 pandemic is sharp and well pronounced, with both sides stressing their viewpoints with fervent belief. This debate has a storied history, with roots running all the way back to the influenza pandemic of 1918. I am not here to discuss either side directly – the goal is to address whether or not the federal government can effectively enforce a COVID-19 related mandate across the nation. As illustrated above, the answer is no. Similar situations have arisen in the last few decades on other matters that hinged on the fulcrum of personal freedom versus regulation.

Seat Belt Laws might be the most direct comparison, with a history that spans back into the late 60s. At that time, only 14 percent of drivers regularly wore seat belts. Similar to today, various laws were introduced by the National Highway Traffic State Administration that tried to enact new safety measures, including requiring passive safety belts in newly manufactured cars starting in 1968, a locking system that prevented cars from starting if a seat belt was not attached in 1973 (killed by Congress a year later), and automatic passive restraints (airbags or on-track seat belts that automatically engaged) in 1977.

Public and political backlash was intense, and the incoming Reagan administration issued its own deregulation-centric policies to fight against further legal measures. In the end, seat belts did become mandatory along with driver’s side airbags; only New Hampshire does not have a law as of today. Even so, the point here is that this fell to states to draft their own laws and then decide upon the level of enforcement (primary versus secondary); the federal government played a role in this (I’ll explain in a moment), but is not the ultimate arbiter.

Marijuana law is also analogous – the federal ruling is that the drug is outlawed, and will prosecute citizens from states that have made it legal (including situations deemed medical). Colorado has reported revenue in the tens of millions (more than alcohol sales, even), and numerous arguments have been made to try and have a federal law revision.

Drinking ages? Similar still – Congress did not enforce a minimum age of 21 until the passing of the National Minimum Drinking Age Act of 1984. Despite states having the age at 18 or 19, many swiftly fell in line.

What do all of these – speed limits, seat belts, marijuana, and drinking – all have in common? Questions of enforcement and how to regulate it. Now, masks join this list of contentious argument.

So what can be done for COVID-19? Perhaps predictably, money becomes the primary motivator. How did the federal government respond to most of these situations? Through incentivizing – states that complied with the 55 MPH speed limit continued to receive their full funding from the Federal Highway Administration (Nevada famously lost all funding for calling the bluff in 1986). The opposite was also effective – states that did not raise their minimum drinking age were penalized via a reduction of road funding. While neither option could be classified as federally-driven enforcement, they demonstrate that there are still methods available to passively regulate the law of states.

The quick and simple way to think about this? Pizza parties. You got those in school when you read extra books or collected trash or sold candy bars. While teachers couldn’t explicitly force you to do any of those things, the promise of pizza was enough. The government has the right to legislate, but cannot enforce, but can use money to motivate.

So really, maybe all we need to do is get Taco Bell to hand out Doritos Locos Tacos to mask wearers preventing the spread of COVID-19.

This article was originally published November 2020.