As noted by Justice Kennedy of the US Supreme Court, our Constitution was meant to “split the atom of sovereignty” creating “two political capacities, one state and one federal, each protected from incursion by the other.” Our Founders envisioned a limited federal government with the bulk of power exercised at the state level, as stated in the Tenth Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

20th Century Rulings Expanded Federal Jurisdiction, but State Police Powers Remain Strong

During the early 20th Century, the Supreme Court vastly increased the power of the federal government, using the Commerce Clause to support much federal legislation on matters that had previously be considered state-level issues. But state power is still broad, if subject to interpretation. According to Cornell Law School the legal phrase “police powers” gives us a view of some of the authority retained by each state:

“Police powers are the fundamental ability of a government to enact laws to coerce its citizenry for the public good, although the term eludes an exact definition. The term does not directly relate to the common connotation of police as officers charged with maintaining public order, but rather to broad governmental regulatory power. Berman v. Parker, a 1954 U.S. Supreme Court case, stated that ‘[p]ublic safety, public health, morality, peace and quiet, law and order. . . are some of the more conspicuous examples of the traditional application of the police power’….” (Emphases added.)

States Protect Individual Liberty from Forced Masking

States use their power to protect their citizens. Notably, under their police powers, states can preclude mask mandates in their jurisdictions, regardless of the status of the science on this issue. Here are some states which have stepped up to protect from what they deem as an oppressive and harmful “countermeasure”:

Iowa HF847:  Facial coverings shall not be required by the board of directors of a school district, the superintendent or chief administering officer of a school or school district, and the authorities in charge of each accredited nonpublic school, or by counties, or cities. Signed into law on 5/20/2021.

Texas SB29:  Government entity may not mandate face masks to prevent spread of COVID-19, with other protective provisions. Signed into law on 6/2/23.

Utah HB1007: This bill prohibits a face covering requirement in the system of higher education and in the public education system. Signed into law 5/28/21.

Face Masking Controversial

Whether citizens can be forced to wear face masks within their own state jurisdiction is an example of something clearly under state, rather than federal, regulation, unless interstate commerce such as air travel is involved. While forcible state use of face masks was widespread early in the COVID-19 pandemic, the resistance to infringement on bodily autonomy was strong and states began to look to constitutionality issues. In addition to the legal issues, the science was controversial as well.

There is recent and credible evidence showing zero demonstrated benefit in masking for containing the spread of viral respiratory illness. One study published in February 2021 in the Lancet, stated: “…we did not find any evidence of decreased risk of transmission in individuals who reported mask use.”  And another journal considered by the National Institutes of Health to have “the highest standard in evidence-based healthcare,” Cochrane Reviews, took a look at the controlled studies on masking back in 2023 and, despite some disclaimers from this esteemed mainstream source, reported that:

“Wearing masks in the community probably makes little or no difference to the outcome of influenza‐like illness [such as] COVID‐19-like illness compared to not wearing masks…. Wearing masks in the community probably makes little or no difference to the outcome of laboratory‐confirmed influenza/SARS‐CoV‐2 compared to not wearing masks….”

Take Action in Your State!

Wherever you live in the USA, you can use your state rights under the US Constitution to ban forced masking, as well as other medical countermeasures. If you want to see protective laws passed in your home state, contact NHFA and our attorneys and lobbying expert can help you in this process. At the same time, it can be useful to contact your state’s health board and school boards and let them know you oppose any return to the mask mandates we experienced under the COVID-19 regime. We know that forced masking harmed our health, dignity, and normal human communication, so let’s not let that happen again!