The resistance of these local officials deserves more support. President Biden and the federal government should look for new ways to provide it.
The Biden administration has already made some moves. Biden called a top schools official in a populous Florida county to underscore his support for the mask mandate there, which is defying GOP governor Ron DeSantis, who has threatened to nix funding to punish such directives.
And the Department of Education has sent letters to schools officials in Texas and Florida strongly supporting their efforts, while indicating that federal covid relief funds can make up funding that either governor suspends.
But the Texas court decision underscores that more must be done. The all-Republican state Supreme Court temporarily blocked mask mandates in two counties — Dallas and Bexar, which is home to San Antonio. This overturned lower court decisions allowing them to remain.
It’s hard to say what this will mean. Local officials in both counties argue that the ruling has no force, as the state Supreme Court still must hear the case, permitting them to keep mandates in place.
But regardless, the broader point here is that these governors — who are prioritizing the obsessions of Donald Trump and his movement under the fig leaf of defending people’s liberty to be free of public health mandates — are using every lever of power at their disposal to prevent local officials from protecting their constituents.
“It is striking the degree to which some governors are taking actions that are clearly harmful to the health of their constituents,” Tom Frieden, a former high level federal and New York City health official, told me.
Under our constitutional order, states are assigned broad powers to protect public health and safety, and to determine how disputes with local officials about these matters are resolved. But their power is not absolute, and the federal government can utilize its own levers of influence in response that do not violate either the spirit or the letter of those arrangements.
Harvard law professor Laurence Tribe notes, for instance, that the feds could lend support to the legal battles these local officials are waging to preserve their ability to implement mask mandates.
“Friend-of-the-court briefs representing the position of the United States could provide powerful ammunition to reinforce the efforts of local authorities,” Tribe told me.
More aggressive options are available. Tribe points out that various existing federal statutes and U.S. Supreme Court decisions have carved out something akin to a right to a safe public education.
This might open the door for the Justice Department to sue states that ban local mandates, Tribe says, on the grounds that this right is being violated by governors who are hamstringing efforts to allow children to get an education safely.
“The federal government could explore the possibility of suing states for endangering their own children,” Tribe told me. The grounds for this, Tribe said, is that these states are burdening families with “an impermissible choice between depriving their children of education and subjecting their children to contagious disease.”
What this might look like, and how workable it might be, is of course subject to debate. Even just public support for the local officials’ legal position might itself make a difference. The broader point here, though, is that the federal government should think creatively and explore all avenues.
“It would be a mistake for federal authorities to treat the power of state governors and legislatures as absolutely impervious to penetration,” Tribe told me.
The Biden administration might be reluctant to get aggressive. The president’s brain trust has long believed that targeting GOP governors could further polarize the covid response, driving Republican voters away from masks and vaccines.
But in truth, this highlights a deep disconnect in this debate. Media discussion of these matters deeply privileges the feelings and preoccupations of opponents of masking and vaccines.
Yet little attention is paid to the aspirations and values of those who want their local officials to use their power — which their constituents have granted them — to implement a collective defense against contagious spread.
And so another possibility might be for Biden and other officials to voice more public support for the idea that local officials should have license to implement mandates in defense of public health, and to vouch for their intentions.
We often talk about the backlash that such public statements might provoke from the anti-mask, anti-vaccine rump. But who knows — they just might help mobilize a silent majority that favors public health measures in defense of children but is not heard the way opponents are, potentially putting more pressure on these governors.
Andy Slavitt, a former Biden administration health official, pointed out that it’s hard to say whether such public expressions would cumulatively help or hurt more. But at the very least, we need to be thinking hard about them.
As Slavitt told me: “Everything should be on the table.”