Biden's plans for mask mandates nationwide will be an early test of his power of persuasion

The Biden transition team is treading lightly so far, saying little about how the incoming administration plans to address what is likely to be among the first tests of Biden's ability to bridge political divides and find consensus.

Before engaging with any of the 13 Republican governors who have yet to pass statewide mask mandates, sources say the Biden team is reaching out to more amenable governors -- including holding staff level meetings with Republican Larry Hogan of Maryland, who was an early adopter of mask mandates and other preventive measures.

Another option under consideration is using economic incentives, which would likely be implemented in an upcoming spending bill, to induce mask mandates, according to one person familiar with the plans being discussed inside Biden's transition team.

No matter what approach Biden and his team take, experts say the reality will likely be something of a patchwork set of rules and guidelines across thousands of localities that will rely as much on social pressure as legal mandates to enforce.

"I think the issue of a nationwide mandate is going to be tricky," said Dr. Marcus Plescia, the chief medical officer at the Association of State and Territorial Health officials. "With a lot of these public health laws and regulations, we really depend on social enforcement."

Biden has acknowledged that his authority to actually enforce a mask mandate is limited and that he will rely heavily on the cooperation of state and local leaders. With Covid raging across much of the country, and the death count surpassing 250,000, Biden's most effective use of presidential power may be as a means of persuasion to set the tone for behavior.

"It's very hard to implement public-health measures, because it requires a lot of buy-in," said Dr. Amesh Adalja, a senior scholar at the Center for Health Security at Johns Hopkins University. "I think what [Biden] has to use is the moral authority of the presidency and the moral authority of all the scientists behind him."

A political test

The process of convincing Republican governors begins in earnest later today when Biden speaks with the bipartisan members of the National Governors Association's executive committee.

The Biden transition anticipates that all nine governors (including five Republicans) on the executive committee will participate in the briefing today, according to a transition official. Biden himself provided a hint of how he may personally appeal to leaders in the other party during a press briefing Monday.

"What I failed to mention earlier is the enormous respect I have for Republican, conservative Republican governors who have stepped up and issued mandates for wearing a mask," Biden said. He might as well have been speaking to Iowa's Republican Gov. Kim Reynolds, who hours later reversed course and instituted a new health order requiring masks indoors and further limiting indoor gatherings to 15 people.

"That doesn't mean that these changes will be easy or popular, but they're necessary if we want to keep our businesses open, our kids in school and our health care systems stable," she said.

As cases have exploded across large swaths of rural America, other Republican governors have added or enhanced mask orders in recent weeks, including North Dakota's Doug Burgum, Mississippi's Tate Reeves and West Virginia's Jim Justice.

Others may follow suit, but that there will almost certainly be holdouts. Gov. Kristi Noem of South Dakota is one of them. An ally of President Donald Trump and a potential presidential candidate in 2024, Noem issued a statement last Friday claiming neither she nor a US President had the authority to order citizens wear masks in public.

"Joe Biden realizes that the president doesn't have the authority to institute a mask mandate," said Noem's spokesman Ian Fury. "For that matter, neither does Governor Noem, which is why she has provided her citizens with the full scope of the science and trusted them to make the best decisions for themselves and their loved-ones."

Other Republican governors without mask mandates have taken more nuanced positions.

A source close to Tennessee Gov. Bill Lee told CNN last week that Lee has opposed issuing a statewide mask mandate because a majority of Tennesseans already live in counties with their own mandates. The source added that a statewide mandate would be counterproductive without buy-in from local law enforcement, which in rural areas are often strapped for personnel and resources.

That underscores the complicated task ahead for Biden. He has to coordinate with governors and local leaders who may not only chafe at getting directives from Washington, but also balk at the practicality of enforcing mask mandates.

Steve Reams, the sheriff of Weld County in northern Colorado, recently told Denver's CBS4 why any kind of mandate from Washington would be impossible to implement on a local level. He said enforcing a mandate like that floated by Biden would be "unprecedented."

"A federal mask mandate, whatever that would look like, would really give no authority to local law enforcement to go out and do any enforcement action," Reams said.

Still others are appearing to wait and see about the new administration's approach. Oklahoma Gov. Kevin Stitt, who has not issued a statewide mask mandate, has said he remains open to working with Biden on Covid-19 response -- in the broadest, vaguest terms possible.

"Governor Stitt will always work with the federal government for the best interests of Oklahomans regardless which party is in office," said Charlie Hannema, Stitt's chief of communications.

Hurdles for Biden

Federal health officials have long been frustrated by the lack of mandatory mask mandates in states and local jurisdictions -- and sources in agencies like the US Centers for Disease Control and Prevention say Biden will have his work cut out for him.

"Let's be clear. When it comes to masks and that sort of thing, the CDC can only offer up guidance. It's not a regulatory agency. The CDC would have no power to mandate the wearing of masks," a federal health official told CNN.

The Biden team is well aware of the challenges this poses. Even before the election, the campaign's messaging wasn't always clear. Biden on several occasions said he would mandate mask wearing "from an executive standpoint." While that could be interpreted as calling for a national mandate, his campaign clarified when asked about Biden's comments that he was referring to his executive authority to mandate masks on federal property.

The federal government has the power to regulate actions on federal property or in federal facilities so the President could require masks be worn in those situations. Beyond that, the Public Health Service Act has a provision that grants the Secretary of Health and Human Services the authority to issue regulations if necessary "to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession."

Given the current situation, the HHS Secretary or the CDC, with HHS approval, could issue nationwide regulations mandating mask wearing in situations that would prevent the spread of coronavirus from state to state. But according to the Congressional Research Service, differing interpretations of the PHSA statute could open the federal government to legal action.

The PHSA statute specifies that the regulations are to prevent interstate spread or foreign transmission of disease. Josh Blackman, a South Texas College of Law professor who specializes in constitutional law, said the statute would have to be read very broadly to give the President the authority to require, for example, people to wear a mask while walking outside or traveling on an interstate highway within the confines of their state.

"I don't think that the statute can be read broadly enough to apply to all people merely moving on an interstate highway," Blackman said. "Once you go beyond people in federal facilities, you're really intruding on what the state's responsible for."

Blackman said it's possible Congress could tie relief funding to mask mandates, but that Biden is limited in what he could do unilaterally through an executive order, much in the same way Trump has been restricted by the courts from punishing cities that provide safe harbor for undocumented immigrants.

"President Trump tried to withhold funding from so-called sanctuary cities. But the courts largely rejected those efforts," Blackman said.

That means Biden's options for nationwide acceptance of mask mandates will rely on a combination of political incentivizing and old-fashioned politicking. Biden, for his part, appeared exasperated Monday by resistance from Republican governors.

"Does anybody understand why a governor would turn this into a political statement?" Biden said at his press briefing. "It's about patriotism, it's about being patriotic, it's about saving lives."