Congress Could Use Grant Conditions to Mandate Masks and Protect Essential Workers
February 25, 2021 by Ezra Tanen
by Brian Shulman
The United States poverty rate returned to pre-pandemic levels in August, following a decrease precipitated by government intervention. As poorer Americans are disproportionately unable to work from home and away from the spread of COVID-19, it is important to keep the virus in check. The loss of a breadwinner can be the difference between living in or out of poverty.
Masks work to slow the spread of COVID-19. Mask mandates can also substitute for larger lockdowns that would otherwise lower GDP and put more Americans in poverty. As of November 13th, 2020, only thirty-four states have mask mandates in place. Most of the remaining states have publicly declared that they will oppose President Biden’s informal requests to put in place mask mandates.
While governors and state legislators may disagree with President Biden on the role of mask mandates, federalism provides a mechanism where the federal government can induce states to act: conditioning federal funds on states enacting mask mandates. This post will compare parts of two Supreme Court cases—National Federation of Independent Businesses v. Sebelius and South Dakota v. Dole—to argue that Congress can enact a nationwide mask mandate by placing conditions on State relief funds in a future aid bill. Making a mask mandate a condition to receive aid in a future stimulus bill will protect poorer workers that are more likely to work in person and reduce the likelihood of larger lockdowns that reduce GDP.
South Dakota v. Dole – Congress May Condition 5% of Funds
As part of Congress’s spending powers, the federal government in Dole sought to withhold 5% of highway funds to states unless the states enacted a drinking age of twenty-one. South Dakota filed suit, alleging that the federal government committed an unconstitutional overreach by effectively setting the minimum drinking age.
The Supreme Court, in a seven-two decision, affirmed the decision of the lower court and upheld the conditions that Congress placed on the highway funds. Chief Justice Rehnquist wrote for the majority, holding that Congress may condition federal funds to help Congress achieve broad policy objectives for general welfare.
Although the setting of a minimum drinking age is a power reserved to the states under the Tenth Amendment, the Court found that the Tenth Amendment does not limit conditions Congress legitimately places on federal grants. Instead, the Court concluded that a Tenth Amendment violation only would occur when the grant conditions force states to engage in activities that are otherwise unconstitutional. Although it is not within the power of Congress to set a nationwide drinking age, using principles of federalism—like grant conditions to incentivize South Dakota to raise their drinking age—does not violate the constitutional rights of South Dakotans.
South Dakota v. Dole stands for the idea that the government may impose grant conditions to compel states to act in ways that they otherwise may not. In the context of COVID-19, several governors have indicated that they do not wish to enact a mask mandate. If the Biden administration and Congress want all states to put mask mandates in place, a grant condition on a future COVID relief bill would put pressure on states to put such mandates in place. While there are other constitutional arguments against mask mandates, the Supreme Court historically has been averse to striking down government actions in response to a pandemic, even when civil liberties are curbed. In the wake of the Dole decision and after risking forfeiture of only 5% of federal highway funds, all fifty states enacted a drinking age of twenty-one years. The same result could happen with mask mandates and COVID-19 relief funds.
National Federation of Independent Businesses v. Sebelius – Congress May Not Condition 100% of Funds
In Dole, Chief Justice Rehnquist warned Congress that at some point grant conditions may be so coercive that subtle pressure turns into unconstitutional coercion. While the 5% in Dole was not unconstitutional coercion, the issue of unconstitutional coercion came up again in National Federation of Independent Businesses v. Sebelius (“NFIB”).
Part of NFIB concerned requirements that states opt in to certain healthcare expansion measures of the Affordable Care Act or lose 100% of their Medicare funding. Seven Justices agreed with Chief Justice Roberts’s opinion that struck down this funding condition. Roberts described the funding conditions as “a gun to the head”, writing that the loss of all Medicare funds is so great a funding loss that states have “no real option but to acquiesce” to the federal government. According to Chief Justice Roberts, Medicare funding makes up over 20 percent of the average states budget, with the federal government covering 50 to 83 percent of those costs.
In the context of COVID-19, then, NFIB stands for the fact that Congress probably may not condition 100% of Coronavirus relief funds on states putting in a mask mandate. Chief Justice Roberts compares Dole and the challenged Medicare condition in NFIB, concluding that the 5% highway funding loss in Dole is permissible because it only represents less than one half of one percent of South Dakota’s budget. If Congress wants a nationwide mask mandate, it must condition funds as a smaller percentage than the condition in NFIB, but Congress could try to use a greater funding incentive than what was in Dole.
Conclusion – First We Need a New Aid Bill
This online post operates with a few key assumptions: one, that Congress will pass a new Coronavirus aid bill, and two, that Congress will follow the lead of President Biden and look to put in place a nationwide mask mandate. If those two assumptions are put in place, South Dakota v. Dole and National Federation of Independent Businesses v. Sebelius above provide a guide for how legislators and President Biden can affect a nationwide mask mandate. Those in poverty would be greatly served by keeping the virus in check, and a mask mandate would do just that.
 Measuring Poverty in the Midst of America’s Covid-19 Epidemic, The Economist (Oct. 3, 2020), https://www.economist.com/united-states/2020/10/03/measuring-poverty-in-the-midst-of-americas-covid-19-epidemic.
 Many Poor Americans can’t Afford to Isolate Themselves, The Economist: Daily Chart (Apr. 24, 2020), https://www.economist.com/graphic-detail/2020/04/24/many-poor-americans-cant-afford-to-isolate-themselves.
 See The Economist, supra note 1 (highlighting the work of Robin Hood, a New York charity, which gives direct aid to families who have lost breadwinners during the COVID-19 pandemic).
 Or Fleischer et. al., Masks Work. Really. We’ll Show You How, N. Y. Times (Oct. 30, 2020), https://www.nytimes.com/interactive/2020/10/30/science/wear-mask-covid-particles-ul.html.
 See Jan Hatzius, Face Masks and GDP, Goldman Sachs Rsch. (June 29, 2020), https://www.goldmansachs.com/insights/pages/face-masks-and-gdp.html.
 Andy Markowitz, State-by-State Guide to Face Mask Requirements, AARP (Nov. 13, 2020), https://www.aarp.org/health/healthy-living/info-2020/states-mask-mandates-coronavirus.html.
 Dan Goldberg et. al., Red State Governors Reject Biden on Mask Orders, Politico (Nov. 13, 2020, 4:30 AM), https://www.politico.com/news/2020/11/13/republican-governors-reject-biden-mask-orders-436385.
 The Economist, supra note 2.
 Hatzius, supra note 5.
 U.S. Const. art. I, § 8.
 South Dakota v. Dole, 483 U.S. 203, 211 (1987).
 Id. at 205.
 Id. at 203-04.
 Id. at 206 (quoting Fullilove v. Klutznick, 448 U.S. 448 (1980).
 Id. at 210.
 Id. 210-11.
 See Goldberg, supra note 7.
 See Jacobson v. Massachusetts, 197 U.S. 11 (1905); see also S. Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613 (2020).
 Jim Angell, Wyoming Joins Rest of Nation With 21-Year-Old Drinking Age, AP News (June 30, 1988), https://apnews.com/article/595fb748dee365e26160b411f665b45b.
 South Dakota v. Dole, 483 U.S. 203, 211 (1987) (quoting Steward Machine Co. v. Davis, 301 U.S. 548, 590 (1937)).
 Nat’l Fed’n of Indep. Bus. v. Sebelus, 567 U.S. 519, 580 (2012).
 Id. at 581.
 See Id. at 689 (Scalia, J., dissenting).
 Id. at 581.
 Id. at 580-81.