On July 11, President Donald Trump wore a mask in public for the first time while visiting a military hospital in Washington D.C., exactly four months to the day that the coronavirus pandemic was declared. Trump’s refusal to wear a mask, along with his overall cavalier attitude to the virus, has drawn some of the harshest criticism of his presidency.
It’s unclear whether his mask-wearing appearance will be a turning point for Trump or simply a temporary concession to appease his detractors, which are starting to include some prominent Republican voices.
These include Miami Mayor Francis Suarez, who told Politico in an interview this week that he believes the federal government should implement a national masking policy. Suarez, who has not yet committed to who he’s voting for in November and who was one of the most prominent U.S. politicians to test positive for the coronavirus, even went so far to weigh in as to whether he would cite Trump for not wearing a mask ahead of the president’s planned visit to Miami.
“The president is expected to follow the rules just like everybody else. That’s the expectation,” said Suarez. “Obviously, that’s what we would hope that he would do. He’s the president of the United States. I’m not sure that he’s subject to a fine. Actually, he would get a warning for the first instance in Miami and then he would get a fine for the second instance. I don’t know who would pay the fine!”
The question poses an interesting argument. Could Trump, theoretically, be penalized by state governors for not wearing a mask? To get to the bottom of it, Politico consulted with Burt Neuborne, professor of law at New York University, and Bruce Ackerman, professor of law and political science at Yale Law School.
“My sense is that the president is not immune from complying with the laws of the states through which he passes,” said Neuborne. “Suppose one state allows open carry of a firearm, while another bans it. My sense is that the president, like everyone else, is obliged to follow such a valid law.”
However, Neuborne points out, the real question is whether elected officials even have the power to impose sanctions against a president for violating the law in the first place.
“There, I think presidential immunity might well exist—especially if the president argues that masks impair his ability to function,” Neuborne adds. “So, no exemption from a duty to follow the law, but probable immunity from any consequences for violating it, at least as long as s/he remains president.”
Though Neuborne seems to think there’s a certain amount of “catch-22” surrounding the issue, Ackerman was somewhat less diplomatic.
“No, the governor of the state cannot order the president of the United States and tell him what to do,” he said. “The institution that can order the president of the United States in this particular is the Congress of the United States.”
Though Neuborne firmly believes that governors, in particular, have no authority over a president’s behavior, they can still be held accountable if Congress were to impose a national mask requirement.
“But on the other hand, if the Congress were to pass a statute ordering the president of the United States to wear a mask at all times in public, this would be an entirely appropriate action for it to take,” Ackerman conceded.
But if Trump won’t continue to wear a mask to avoid a penalty, perhaps he’ll do it to save his own flailing poll numbers. CNN recently published an op-ed calling the president’s refusal to wear or endorse wearing masks will be a decision “that will haunt Trump’s reelection bid.”
“The bungled response has caused grave damage to the president’s political outlook—with his reluctance on masks only deepening the impression that Trump is not taking the pandemic seriously,” the piece stated. “Many of Trump’s closest allies now say in private that wearing a mask in public could help him appear more attuned to the crisis. They fear his failure to do so—and to encourage his supporters to follow suit—could threaten the economic recovery Trump is counting on to fuel his reelection, because further outbreaks could roll back the reopenings he desperately needs to have a chance in November.”