From the COVID federalism trenches: the matter of mask mandates

Updated: Sep 30, 2021

Litigation proceeds apace with regard to Red state governor challenges to local mandates and private vaccine passports. Efforts by governors DeSantis (Florida) and Abbott (Texas) have been rebuffed by trial courts only to be vindicated by courts of appeal -- and, in the case of Texas, by the state supreme court. These orders are all emergency orders, and so we have not yet had a full-scale trial on these issues. And, if we assume that these mandates will not become moot, either because (happily) COVID 19's fury abates or because (unlikely) the governors retreat, we can expect to see some consequential rulings in the coming months.

The essence of the legal issues in these and related cases concern the power of the governor to limit local action, whether this action is undertaken by a general purpose municipal government or by a school district. Governors in Florida, Texas, and elsewhere have pushed the argument that their emergency authority to protect public health gives them omnibus authority to limit local initiatives, including mask mandates, on the grounds that they are acting to ensure health. And yet the DeSantis order in particular gets away from that clever script, by insisting that the nub of the issue is not the clear health-protective choice to ban mask mandates but rather the value of leaving this issue to the parental choice. Styled as a liberty-friendly effort, we are led directly back to the question of how the state constitution, in giving state governors and legislatures broad police power to protect health and safety, can be invoked to limit efforts by local officials (who are also acting under the rubric of this police power, albeit derivative of the police power of state government) to safeguard public health.

All of this is to say that the state courts grappling with these issues of governmental authority and, to some degree at least, state constitutional law, should frame the issue accurately. The issue is not one of pure localism, by which we mean the constitutional autonomy of local governments from state control. In all but a small handful of states that embrace a strong imperium in imperio model of municipal home rule, this issue will generally be a loser for the local government. Rather, the issue is whether and to what extent does the governor have the authority under the relevant state constitution to act, under the police power, to protect individual liberty ("parental choice") where such protections works against, not in favor, public health strategy. After all, the police power was never intended to be a banal rendition of the proposition that state government officials can do whatever they want unless they are circumscribed by structural or rights guarantees in the state constitution or by federal laws. It was mean to be an essential device to ensure that state (and, where appropriate, local) government could undertake purposeful steps to protect health, safety, and the general welfare. Would it not be ironic to see this power that has survived the shaky circumstances of the post-Reconstruction era and the Lochner period of "laissez faire constitutionalism" only to see it be weaponized as a sort of partisan political -- and ultimately anti-health -- mechanism? One hopes that the state courts will frame the issue the right way in resolving these cases involving mask mandates and other COVID 19 public health laws.