Recently, a woman in Texas was taking her children to a pediatrician. She and her kids were maskless because it’s 2023 and, well, really that’s the only explanation needed. Yet she was told her children would not only be denied treatment without the wearing of face coverings, but the doctor’s office also threatened to call Child Protective Services on the mother.
You’ve likely heard the rumors and seen some social media pronouncements by a few universities, school districts, and businesses. Maybe even reports in the corporate press sourced to friendly reporters. Mask mandates are coming back — with the cooperation of public health officials, local government bureaucrats, and suspiciously eager HR departments.
Hopefully, you’ve also heard the refrain “Do Not Comply.” This independent impulse toward civil disobedience is deeply American and a part of our national story. But we can’t let it become our only strategy. We need to fight fearmongering with federal legislation.
After the declared end of the pandemic, even by President Joe Biden himself, we saw a national shift in public opinion against the government’s abuse of power, but we left the legal door cracked too far open.
The “Do Not Comply” outrage is correct and righteous. If these mandates come back in full force, no, you should not comply. But when Republican members of Congress like Marjorie Taylor Greene and Thomas Massie insist that Americans engage in civil disobedience as a first step to fighting a new Covid tyranny, they are retreating to the last resort too early.
Far less than we need their tweets, we need them to write laws that match the expressed will of the American people. We need them to invest their political capital and raise legislative barriers to government overreach.
It’s understandable from a raw political perspective why reforming public health law has fallen off the radar. Covid is over, and pushing legislation on an issue that has generally dropped far down the public radar is thankless, maybe even politically naïve. But now it’s time.
Those who exercised such autarchic power grow accustomed to it and will seek to exercise it again. Let’s recall how dramatically and explicitly the majority of states suspended the First Amendment in 2020. We closed churches and prevented peaceable assembly, with restrictions remaining in place long after public opinion had turned. Does anyone think polls and surveys will stand in the way of the next lockdown push?
The vigor and as-of-yet unresolved anger of the “Do Not Comply” crowd is because we know we lost the first round. What was a tripartite and complex societal crisis — public health, economic turmoil, and civil liberty — was handled by lab coat-wearing specialists at times openly disdainful of our civil liberties and wholly unqualified to assess the economic carnage their mandates wrought. We’re angry and apprehensive because we finally halted them, but we never fully closed the door to their return.
Recognizing that and channeling that anger into action is our charge. We need more than anger and vague calls to civil disobedience. We need legislative action at the federal level.
Much credit is due to freshman Sen. J.D. Vance’s action this week to force a vote on a ban of mask mandates on airplanes and in public schools. Democrats predictably shot it down and were explicit that they wish to preserve this power for the bureaucrat-princes of public health. While Democrats will shoot down such legislation again, Republican leaders must not only push legislation forward but make it a priority. Tie it to other critical budget items that the Biden administration needs to pass.
Put more simply, make this a priority, not the unfinished business we pass onto another generation. Here’s a look at how we can do that.
A Playbook Against Medical Tyranny
Many Americans don’t realize that the federal government exercised its emergency power in 2020 primarily through longstanding federal laws. The Public Health Services Act (PHSA) of 1948 and the Stafford Act, as well as the National Emergencies Act, gave the federal government all the power it needed to enforce restrictions across a number of industries and venues.
The PHSA is the law that both the Department of Health and Human Services (HHS) and its implementing agency, the Centers for Disease Control and Prevention (CDC), rely upon to claim federal authority over matters of isolation and quarantine. We know this because both say it publicly on their sites right now.
The quarantine power, exercised through CDC, was traditionally a temporary detainment power over an individual suspected of a dangerous and contagious illness, usually upon arriving back into the United States. Then, on the very last day of the Obama administration, CDC promulgated into the federal register a major expansion of that power. They claimed that their detainment authority applied en masse to groups of people reasonably suspected of being in the qualifying stages of having a communicable disease. They also expanded the definition of “qualifying stages” to include those who appeared healthy or asymptomatic, among other expanded latitude for action.
That’s how we got to President Biden’s American Travel Ban, incorrectly called by many a mask mandate. Biden asserted that authority historically granted over individuals in very specific circumstances could be construed to apply to the American populace as a whole, and hence our travel could be limited barring we meet their preferred conditions. Put more simply, that authority was applied not only en masse but without regard for individual symptoms or other signifiers of disease: We were all considered potential disease vectors.
It was a brazen assumption of federal authority based on an already novel interpretation of the original law.
It was also one of the worst infringements of civil liberty in our country’s history and one that carried virtually no public health benefit. All that Biden’s American Travel Ban succeeded in doing was setting a terrible precedent.
If we want to push back effectively against medical tyranny, let’s start by passing a law that specifically identifies and supersedes those Obama-era rules in the Federal Register (and any related following rules), declaring them null and void.
Then let’s amend Section 361 of the Public Health Services Act to further limit the scope of any detention authority.
With those two mistakes corrected, the legislature should then remove the ability for the HHS director to declare public health emergencies and instead require that the director present that recommendation to the president.
Americans have rejected the post-Covid half-life some wished for, a land with permanent masking and without handshakes. Nearly 200 laws at the state and local level have been adopted curtailing the emergency powers of governors and public health officials. But we still have work to do because we opened that Pandora’s box of power to federal bureaucrats.
So, to Republican legislators: It’s your turn. Don’t begin by asking the citizens you represent to simply not comply with the law. Change the laws, and make the bureaucrats comply with their new orders. We self-govern. This is a chance to have a shining example of what popular sovereignty looks like.
Make it so they can never do this to us again.
Jason Killmeyer is a counterterrorism and defense policy expert specializing in emerging technology applications. His recent forays into cultural and political commentary have been featured in Human Events, Townhall, the Pittsburgh Tribune Review, and more. Follow Jason on Twitter @JasonKillmeyer.
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