- Lawsuits attacking the constitutionality of masks are unlikely to succeed, legal experts said.
- A wave of lawsuits have been filed against the Biden administration and local governments.
- They were “exceedingly unlikely” to end the mask mandates, said Brendan Beery, a law professor.
- See more stories on Insider’s business page.
A wave of lawsuits seeking to put an end to local, state, or federal mask mandates have hit US courts, but attorneys and legal scholars mostly say they’re fighting an uphill battle.
“Those challenging mask mandates would likely argue that the federal government lacks the power to impose them,” said Brendan Beery, a law professor at Western Michigan University. “But there are two areas where the federal government is explicitly authorized to regulate under the Constitution: federal property and interstate commerce.”
As such, the federal mask mandates put in place after President Joe Biden’s January executive order requiring travelers to wear masks would likely stand up to legal challenges, Beery said.
Legal challenges to masks have been filed in federal courts around the US. One plaintiff has filed lawsuits in both Indiana and Michigan.
The Biden administration has defended the mandates, saying in a filing in Florida court last month that they weren’t unconstitutional.
Such mandates are “one of the basic tradeoffs of living in a society, with a government that is authorized to make policy choices that individual citizens may not support,” lawyers for the Department of Justice wrote.
Insider spoke with a handful of attorneys and academics about the prospects of anti-mask lawsuits. The conversations were general and not related to any specific case.
Each person Insider spoke to used the word “unlikely” to describe the probability that one or more of the lawsuits would eventually remove federal mask mandates.
Beery, for example, said the lawsuits were “exceedingly unlikely” to make a difference. Others said they were “highly unlikely” to do so.
“It’s rather unlikely these lawsuits will change federal mandates,” said Minesh Patel, a founder and attorney at The Patel Firm, “because doing so would undermine the common-sense interpretations of certain public health statues.”
Mask mandates are supported by scientists at governmental and non-governmental organizations.
The Centers for Disease Control and Prevention and the World Health Organization have both said that masks help stop the spread of COVID-19. They’ve both recommended that people who are fully vaccinated should continue wearing masks in areas with high transmission rates, including planes.
The Transportation Security Administration in August extended mask mandates through January 2022.
Collen Clark, lawyer and founder of Schmidt & Clark, said it was “highly unlikely” that those mask mandates would be eliminated through legal action from anti-maskers.
“The constitution has ultimately no problem whatsoever with the implementation of federal mask mandates,” Clark said via email.
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