II 

118TH CONGRESS 

1ST SESSION S. 2738 

To prohibit through December 31, 2024, the imposition of a mask mandate 

on passengers of air carriers or public transit and in educational settings 

within the United States, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

SEPTEMBER 7, 2023 

Mr. VANCE (for himself, Mr. HAWLEY, Mr. SCHMITT, Mr. BRAUN, Mr. MARSHALL, Ms. LUMMIS, Mr. BUDD, Mr. BARRASSO, Mrs. BRITT, Mrs. 

BLACKBURN, and Mr. DAINES) introduced the following bill; which was 

read twice and referred to the Committee on Health, Education, Labor, 

and Pensions 

A BILL 

To prohibit through December 31, 2024, the imposition of 

a mask mandate on passengers of air carriers or public 

transit and in educational settings within the United 

States, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Freedom to Breathe 

5 Act’’. 

6 SEC. 2. DEFINITIONS. 

7 In this Act: 


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1 (1) AIR CARRIER.—The term ‘‘air carrier’’ 

2 means an air carrier conducting passenger oper3 ations under part 121 of title 14, Code of Federal 

4 Regulations. 

5 (2) APPLICABLE PERIOD.—The term ‘‘applica6 ble period’’ means the period that begins on the date 

7 of enactment of this Act and ends on December 31, 

8 2024. 

9 (3) COMMUTER RAIL PASSENGER TRANSPOR10 TATION.—The term ‘‘commuter rail passenger trans11 portation’’ has the meaning given the term in sec12 tion 24102 of title 49, United States Code. 

13 (4) ESEA DEFINITIONS.—The terms ‘‘elemen14 tary school’’ and ‘‘secondary school’’ have the mean15 ings given the terms in section 8101 of the Elemen16 tary and Secondary Education Act of 1965 (20 

17 U.S.C. 7801 et seq.). 

18 (5) COVERED EDUCATIONAL INSTITUTION.— 

19 The term ‘‘covered educational institution’’ means 

20 an elementary school, secondary school, or institu21 tion of higher education, that receives Federal funds. 

22 (6) INSTITUTION OF HIGHER EDUCATION.—The 

23 term ‘‘institution of higher education’’ has the 

24 meaning given that term in section 102 of the High25 er Education Act of 1965 (20 U.S.C. 1002). 


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1 (7) MASK.—The term ‘‘mask’’ means a mate2 rial covering the nose and mouth of the wearer, ex3 cluding face shields. 

4 (8) MASK MANDATE.—The term ‘‘mask man5 date’’ means an order, directive, or ordinance which 

6 requires an individual to wear a mask to travel on 

7 any conveyance, or to enter or remain in any place 

8 within the United States, in response to a public 

9 health emergency. 

10 (9) NATIONAL AIRSPACE SYSTEM.—The term 

11 ‘‘national airspace system’’ has the meaning given 

12 such term in section 245.5 of title 32, Code of Fed13 eral Regulations (or a successor regulation). 

14 (10) PUBLIC TRANSIT.—The term ‘‘public tran15 sit’’— 

16 (A) means a regular, continuing shared17 ride surface transportation service that is open 

18 to the general public or open to a segment of 

19 the general public defined by age, disability, or 

20 low income; and 

21 (B) includes— 

22 (i) intercity passenger rail transpor23 tation provided by the entity described in 

24 chapter 243 of title 49, United States 

25 Code (or a successor to such entity); 


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1 (ii) intercity bus service; 

2 (iii) charter bus service; 

3 (iv) school bus service; 

4 (v) sightseeing service; 

5 (vi) courtesy shuttle service for pa6 trons of 1 or more specific establishments; 

7 (vii) intra-terminal or intra-facility 

8 shuttle services; and 

9 (viii) commuter rail passenger trans10 portation. 

11 SEC. 3. RESTRICTIONS ON THE USE OF FEDERAL FUNDS. 

12 During the applicable period, notwithstanding any 

13 other provision of law, no Federal funds may be obligated 

14 or expended to propose, establish, implement, or enforce, 

15 directly or indirectly through the imposition of a condition 

16 on receipt of Federal funds, any requirement that an indi17 vidual wear a mask or comply with a mask mandate while 

18 traveling as a passenger of an air carrier in the national 

19 airspace system, using public transit, or while in any ele20 mentary school, secondary school, or institution of higher 

21 education. 


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1 SEC. 4. PROHIBITIONS ON IMPOSING A MASK MANDATE ON 

2 PASSENGERS OF AIR CARRIERS IN THE NA3 TIONAL AIRSPACE SYSTEM. 

4 (a) NO MASK REQUIREMENTS ON PASSENGERS OF

5 AIR CARRIERS IN THE NATIONAL AIRSPACE SYSTEM.— 

6 Notwithstanding any other provision of law, during the ap7 plicable period, neither the President nor any other Fed8 eral officer, employee, agency, or office shall issue or en9 force an order requiring an air carrier to impose a mask 

10 mandate on individuals who are passengers of the air car11 rier in the national airspace system. 

12 (b) NO AUTHORITY TO REFUSE AIR TRANSPOR13 TATION.—During the applicable period, no certificate 

14 holder under part 119 of title 14, Code of Federal Regula15 tions, which conducts scheduled operations under part 121 

16 of that title, nor any other air carrier who provides pas17 senger air transportation in the national airspace system, 

18 shall refuse transportation to a passenger on the basis 

19 that the passenger refuses to wear a mask or comply with 

20 a mask mandate while traveling in the national airspace 

21 system. 

22 (c) NO AUTHORITY TO ISSUE OR ENFORCE MASK

23 MANDATES ON PASSENGER AIR CARRIER OPERATIONS IN

24 RESPONSE TO A PUBLIC HEALTH EMERGENCY.—Section 

25 361 of the Public Health Service Act (42 U.S.C. 264) is 

26 amended by adding at the end the following: 


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1 ‘‘(f) Nothing in this section authorizes the Secretary 

2 to require individuals to comply with a mask mandate (as 

3 defined in section 2 of the Freedom to Breathe Act) while 

4 traveling as a passenger of an air carrier (as defined in 

5 such section) in the national airspace system (as defined 

6 in such section) in response to a public health emergency 

7 declared under section 319 during the applicable period 

8 (as defined in such section).’’. 

9 SEC. 5. PROHIBITIONS ON IMPOSING A MASK MANDATE ON 

10 PASSENGERS USING PUBLIC TRANSIT. 

11 (a) NO MASK REQUIREMENTS ON PASSENGERS

12 USING PUBLIC TRANSIT.—Notwithstanding any other 

13 provision of law, during the applicable period, neither the 

14 President nor any other Federal officer, employee, agency, 

15 or office shall issue or enforce an order requiring a Fed16 eral, State, or local public transit agency or authority to 

17 impose a mask mandate on passengers using public tran18 sit. 

19 (b) NO AUTHORITY TO REFUSE PUBLIC TRANSIT.— 

20 During the applicable period, no public transit operator 

21 shall refuse transportation to a passenger on the basis 

22 that the passenger refuses to wear a mask or comply with 

23 a mask mandate. 

24 (c) NO AUTHORITY TO ISSUE OR ENFORCE MASK

25 MANDATES ON PASSENGER AIR CARRIER OPERATIONS IN


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1 RESPONSE TO A PUBLIC HEALTH EMERGENCY.—Section 

2 361 of the Public Health Service Act (42 U.S.C. 264), 

3 as amended by section 4(c), is amended by adding at the 

4 end the following: 

5 ‘‘(g) Nothing in this section authorizes the Secretary 

6 to require individuals to comply with a mask mandate (as 

7 defined in section 2 of the Freedom to Breathe Act) while 

8 using public transit (as defined in such section) in re9 sponse to a public health emergency declared under sec10 tion 319 during the applicable period (as defined in such 

11 section).’’. 

12 SEC. 6. PROHIBITIONS ON IMPOSING A MASK MANDATE IN 

13 EDUCATION SETTINGS. 

14 (a) NO MASK REQUIREMENTS IN SCHOOLS OR INSTI15 TUTIONS OF HIGHER EDUCATION.—Notwithstanding any 

16 other provision of law, during the applicable period, nei17 ther the President nor any other Federal officer, employee, 

18 agency, or office, shall issue or enforce a mask mandate 

19 requiring individuals to wear a mask in any elementary 

20 school, secondary school, or institution of higher edu21 cation. 

22 (b) NO AUTHORITY TO REFUSE ACCESS TO EDU23 CATION.—During the applicable period, a covered edu24 cational institution shall not refuse entry to or participa25 tion in any educational service or activity to a student, 


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1 teacher, parent, or other individual on the basis that the 

2 student, teacher, parent, or other individual refuses to 

3 wear a mask or comply with a mask mandate during the 

4 educational service or activity. 

5 (c) NO AUTHORITY TO ISSUE OR ENFORCE MASK

6 MANDATES IN EDUCATIONAL SETTINGS IN RESPONSE TO

7 A PUBLIC HEALTH EMERGENCY.—Section 361 of the 

8 Public Health Service Act (42 U.S.C. 264), as amended 

9 by section 5(c), is further amended by adding at the end 

10 the following: 

11 ‘‘(h) Nothing in this section authorizes the Secretary 

12 to require individuals to comply with a mask mandate (as 

13 defined in section 2 of the Freedom to Breathe Act) in 

14 any elementary school or secondary school (as such terms 

15 are defined in section 8101 of the Elementary and Sec16 ondary Education Act of 1965) or institution of higher 

17 education (as defined in section 102 of the Higher Edu18 cation Act of 1965) in response to a public health emer19 gency declared under section 319 9 during the applicable 

20 period (as defined in such section).’’. 

21 SEC. 7. REGULATIONS. 

22 Not later than 90 days after the date of enactment 

23 of this Act, the head of each Federal agency or office to 

24 which this Act applies shall issue such new or revised regu25 lations as are necessary to carry out this Act. 


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1 SEC. 8. PREEMPTION. 

2 The provisions of this Act shall supersede any provi3 sion of Federal, State, Tribal, territorial, or local law, dec4 laration, guidance, or directive to the extent that such 

5 laws, declarations, guidance, or directives are inconsistent 

6 with this Act. 

Æ 


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