Face Covering Requirements: Progress and Regress in the battle against covid-19

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Heartening news from Alabama—Governor Kay Ivey ordered face coverings be worn in public, an emergency measure to slow the spread of the novel coronavirus there as the state reached a new record daily death toll. A recognition in the midst of a still unfolding disaster that face masks work.

Short of shelter-in-place orders or further business closures, face masks are in fact the only thing that will work. The CDC has said that “cloth face coverings are one of the most powerful weapons we have to slow and stop the spread of the virus — particularly when used universally within a community setting.” The Director of the CDC, Robert Redfield, said this week “If we could get everybody to wear a mask right now, I really think in the next four, six, eight weeks, we could bring this epidemic under control.”

Nearly half of all states now have a mask mandate, and even more states allow decisions about face-coverings to be made at the local level. These are temporary measures to help a town or city beat back an outbreak hitting it disproportionately to other areas in a state.

But the biggest move is from Walmart, the nation’s largest retailer. It announced customers must wear face-coverings to enter any of its stores anywhere in the nation. The National Retail Federation endorsed Walmart’s announcement, stating “Shopping in a store is a privilege, not a right. If a customer refuses to adhere to store policies, they are putting employees and other customers at undue risk.”

We seem to be largely beyond the legal question whether an elected official can order face coverings to be worn in indoor spaces. Generally applicable face-covering requirements do not violate your constitutional rights. Chief Justice John Roberts wrote recently that wide latitude should be given to state and local officials in a pandemic: “Our Constitution principally entrusts [t]he safety and the health of the people to the politically accountable officials of the States to guard and protect. When those officials undertake to act in areas fraught with medical and scientific uncertainties, their latitude must be especially broad.”

So what to make of the Governor of Georgia’s latest move, to prevent city and county governments from requiring face coverings be worn in retail establishments and other public venues? It is hard to see the harm to the state if the mayor of Savannah concludes a temporary face-covering requirement is necessary, as he has done (along with the mayor of Atlanta and other towns throughout Georgia). In a Twitter response to the Governor’s order, Savannah Mayor Van Johnson wrote “It is officially every man and woman for himself/herself. Ignore the science and survive the best you can.”

Is this just a quirk of Georgia law, that the governor can prevent public health measures a local elected official believes necessary? The question is rare nationally, and that’s a good thing for democratic government. Let’s take a look.

The declaration of a public health emergency in Georgia permits the Governor to issue executive orders imposing social-distancing measures, including temporary business closures, limitations on gathering size, and the like. Face-coverings too, should the Governor deem those necessary. But Georgia emergency law does not give the governor authority to override local face masks requirements in the name of that “emergency.” At best, the Governor may direct the Department of Public Health “to coordinate public health emergency responses between state and local authorities.”

Here is how local health authority is described by the Georgia Department of Health on its website:  “Each of Georgia’s 159 County Boards of Health is also authorized to enact regulations to protect the public health in their jurisdiction, provided those county regulations do not contradict those of the Department. After looking at the Department’s regulations, you may wish to check with your County Board of Health to see if it has elected to enact supplemental regulations on a particular subject.”

Without the Governor’s executive order, Savannah’s face mask requirement would be perfectly legal under Georgia law. Local face-mask ordinances only contradict state law now because Governor Kemp says they do, to buttress his claim that he could challenge local face-mask requirements in court and win. I think the Governor would lose. But rather than force the question, why not allow local decision-making, as Texas has done, rather than waste time and resources engaging in litigation?

Governor Kemp is in the distinct minority of Republican Governors on this one. The sky has not fallen since the Texas, Arizona, and Alabama Governors reversed course on face masks. One stunning result of the Georgia Governor’s action is the world’s busiest airport, Atlanta’s Hartsfield-Jackson, is once again mask free. As I wrote previously, the FAA, the CDC, or someone at the federal level should take action to better protect interstate travelers and their destinations. Preventing the spread of COVID-19 in America’s airports should not be left up to mayors or governors, and certainly not be overridden by a governor if a mayor steps up to fill the gap.

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