Judge Andrew Napolitano said Monday that federal and state governments “do not have the authority” to mandate the wearing of face masks.
Prominent Democrats, including House Speaker Nancy Pelosi and presumptive Democratic presidential nominee Joe Biden, have in some form supported a federal mask-wearing mandate as a measure to fight the spread of coronavirus.
The Fox News judicial analyst discussed the issue during the network’s “America’s Newsroom” program. He said that the 10th Amendment to the Constitution reserves matters of public health and safety to the states, but even they lack the authority to mandate masks anywhere but state property.
“The federal government certainly can’t do it because the federal government is not charged with public health or public safety,” Napolitano told Fox News’ Melissa Francis. “That is an area that is reserved by the Tenth Amendment to the Constitution for the states.”
While the “power of the purse” could convince states to agree to a federal government wish, Napolitano said that the states themselves would have limited power in that area.
“And that brings us to whether the states have the authority to do that, and the answer again is no,” said the judge. “If a person is known to be contagious, the state could require that person to be quarantined or wear a mask, but anything short of that, the state cannot interfere with that person’s freedom of movement or freedom to wear or not to wear a mask, so the government’s authority is really rather limited here no matter how aggressive the pandemic may become.”
When Francis asked about comparing mask requirements to seat belt requirements, Napolitano said that seat belt requirements are mandated “on government property” and for use of “a deadly weapon.”
“So let me modify slightly what I just said,” he said. “The federal government could compel wearing masks on federal property. A military facility, the post office, government buildings, and the state government could compel wearing masks on state property. The DMV, state colleges, things like that. But on property that the government doesn’t own, the feds have no authority to compel wearing a mask, and the states can only compel it when people are sick.”
Napolitano said that “force of public opinion” could do “what the law cannot do” if the vast majority of people in an area shame those not wearing masks.
“But in terms of police stopping you on the street or giving you a summons or a court imposing a fine, absolutely not,” he concluded. “First of all, these mayors and gubernatorial edicts are just suggestions. They are not the law.”