Congress must end the federal mask mandate once and for all

The U.S. Department of Justice’s appeal of a judge’s ruling against the federal mask mandate on public transportation illustrates why the House of Representatives needs to join the Senate and vote to permanently end the mandate. It made little sense before, and it makes even less sense now. 

The DOJ filed the appeal last Tuesday, claiming that the federal district court’s April ruling in Florida didn’t come close to “showing that the CDC has acted outside the ‘zone of reasonableness’” and further that there was “ample support for the agency’s determination that there was good cause to make the order effective without delay.” The Biden administration could unilaterally reinstate the mandate if the appeal succeeds.

The Senate passed a bill to end the mandate a month prior to the court’s ruling by a 57-40 margin, with eight Democratic senators joining all but one Republican. But Speaker Nancy Pelosi (D-Calif.) has never allowed a vote on a similar bill in the House despite calls by members for a vote. The House bill had become moot until the DOJ appealed, but now the House has a good reason to take up the issue. 

Most people probably do not think of the mandate as an economic issue. But ultimately, the case for or against such a mandate rests on the logic of something economists call “externalities.” Externalities occur when people don’t bear the full costs of their decisions because some of those costs “spill over” onto other people. 

The simplistic application of the logic of externalities to the mandate is obvious. When people choose not to wear masks on planes, they benefit from greater comfort, but some of the cost is born by others who are more likely to get infected. If people don’t consider the cost to others, the case for regulation such as a mask mandate could be made on efficiency grounds. 

However, Nobel laureate economist Ronald Coase long ago illustrated that the situation is more complex. He argued that externalities are reciprocal: A mask mandate imposes costs on people who would rather not wear masks for benefit of others. But those who benefit from the policy don’t pay a cost to those who are forced to wear masks.  A mandate changes who bears the burden of an externality, but it doesn’t eliminate it. 

Fortunately, when externalities occur on private property, the pursuit of profit leads businesses to find an efficient solution. Any policy will upset some customers and please others, so firms will gauge how much business they will lose or gain and set their policies accordingly. The profit motive forces businesses to “internalize” externalities between customers because their bottom line is impacted. 

When the mask mandate was overturned, every domestic airline lifted its mask requirement, often to the applause of passengers. Airlines can impose their own requirements, so the fact that none have done so is very strong evidence that reinstating the mandate would inefficiently impose costs that are greater than the benefits. 

The Justice Department’s appeal rests on the legality, not the logic of the mandate. It’s time for the House to vote. The bill would likely receive strong bipartisan support and could prevent us from getting stuck with a reimposed mandate that is more about asserting federal authority than about improving America’s well-being.   

Benjamin Powell, a senior fellow at the Independent Institute in Oakland, Calif., is director of the Free Market Institute and a professor of economics in the Rawls College of Business at Texas Tech University.