When Joe Biden issued an executive order this week requiring mask-wearing on federal properties, it was framed as the least controversial provision he would issue early in his presidency.
“It’s not a political statement,” he said, “it’s a patriotic act.”
But shortly after the newly elected president uttered that plea, some Republicans made clear that even this ask wouldn’t go over well with them.
“The Biden administration is already headed in the wrong direction,” Rep. Lauren Boebert (R-Colo.) said on Friday. “Continued federal overreach won’t end the Covid-19 pandemic or put food on the table.”
And within days, it became clearer that opponents wouldn’t just complain about the mask mandate, but actively fight it, too.
“Definitely expect lawsuits from our state, private lawsuits,” said Brendan Steinhauser, a Texas-based GOP strategist and former campaign manager to Sen. John Cornyn (R-Texas).
The pushback against Biden’s mask mandate is the earliest, most visceral sign to date that consensus will be nearly impossible to form in a still very-much-divided D.C. And it raises questions about how far the new administration is willing to go to crush what remains of a lethal pandemic, with expectation of 100,000 more deaths in the next month and widespread vaccination still months away.
Under the executive order, Biden is directing departments and agencies under his jurisdiction “to immediately take action to require people in federal buildings or on federal lands, on-duty or on-site federal employees, and on-site federal contractors to wear a mask and maintain physical distance,” according to the White House.
But the order also requires masks on various modes of public transportation, including trains, airplanes and intercity buses. And it’s that provision, attorneys who have challenged mask mandates in the past say, that could be the most vulnerable to a legal challenge.
While Republicans are warning about the potential for overreach, it does not appear that the White House will take a direct role in penalizing those who flout the mask mandate. A White House official said that agencies will be tasked with enforcing the order as they see fit. National parks also must abide by the mask order, but the White House says it is allowing for officials overseeing the parks to create their own guidelines for indoor and outdoor spaces on their properties.
At least one attorney who has headed a court case opposing mask mandates, said the language in Biden’s order appeared tightly written, perhaps in anticipation of legal challenges.
“In the summary I reviewed, I see evidence of careful thought and planning to anticipate challenges,” said Seldon Childers, a Florida attorney who has a pending case challenging mask mandates. ”I think they will probably prevail on having authority regulations.”
Scientists and epidemiologists say mask wearing is a critical means to slow the spread of Covid. And it wasn’t a surprise that Biden made the mandate one of his first acts in office. Throughout the campaign, he had pledged to take the action on the first day of his presidency.
But the pushback has, nevertheless, been visceral. A month ago, Rep. Chip Roy (R-Texas) was chiding Biden’s mask mandate idea on Twitter. “On day one,” he said, “I will tell you to kiss my ass.”
And, after the formal introduction of the mandate, Republicans went after BIden, calling him a hypocrite for not wearing a mask at the Lincoln Memorial hours after he had signed the mandate.
“Typical Democrat – rules for thee, not for me,” former Trump campaign official Marc Lotter tweeted.
Ari Fleischer, former press secretary to George W. Bush, tweeted a New York Post story entitled “President Biden ditches mask at Lincoln Memorial hours after mandate.”
In a press briefing on Thursday, a Fox News reporter pressed White House press secretary Jen Psaki on whether Biden was practicing what he preached.
“We take a number of Covid precautions, as you know here, in terms of testing, social distancing, mask wearing ourselves, as we do every single day,” Psaki said.
Pushing against scientific consensus, Florida state Rep. Anthony Sabatini, who has filed more than a dozen local lawsuits to battle mask mandates in counties across the state, challenged the notion that masks actually reduce the spread of the virus. He pointed to California, where compliance is high even as cases of Covid-19 have soared. He also insisted that there was no practical point to it, since, he argued, most federal properties are already requiring masks and cast Biden’s move as political.
“I think he’s the guy that it’s all about optics it’s not really about results,” Sabatini said. “He wants to get his message across that he cares. He cares more about looking like he’s doing something.”
Biden advisers don’t necessarily dispute the idea that the point of the order is not the mandate itself but the optics and message it sends. They say Biden felt it was important for Americans to hear a clear message on the benefits of mask-wearing — with one White House official saying there was “no unifying standard” under Donald Trump. But the edict is also part of what they described as an all-hands-on-deck effort to contain the spread of the virus at a time that Biden has repeatedly warned would be a “dark winter.” And the more compliance with mask wearing, Biden advisers say, the more the country has an opportunity to drive down the spread of the virus.
Read more: politico.com