Dear Decaturish – Governor Kemp’s preemption of local mask wearing mandates is illegalFILE PHOTO: Amy Butner’s protective mask comes with a message. In Korean it reads “Lets Live together.” Downtown Decatur, April 26, 2020. Photo by Dean Hesse.
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Editor’s note: The author of this letter is a local attorney.
Governor Kemp’s preemption of local mask-wearing mandates is illegal.
The law that governs this issue, the one that the governor invoked to suspend local mask mandates, authorizes local governments to tweak statewide emergency orders to conform to local conditions — as long as such tweaks are not “inconsistent with any orders … promulgated by the Governor … .”
Did the Governor prohibit wearing masks in public in his order? If he did, then a local mask mandate would clearly be inconsistent with that order in the sense that it would undercut what the governor ordered.
But the governor’s order does not prohibit mask-wearing. Indeed, he informally and by example encourages folks to wear masks. The order even allows judges to make mask-wearing mandatory in courts.
So, how are local mask mandates inconsistent with the order? The answer is: they are not. Indeed, mask mandates further the purpose of the governor’s order of containing the pandemic. If local mask mandates are consistent with the order, then the governor’s suspension of the local laws illegal.
The governor tries to fudge his way around the inconvenient words in the law by using different words that are not in the law. In particular, the governor says that any local mandates that are “more restrictive than this Executive Order” are preempted (again, unless the mandate is from a court). The problem for the governor is that the law says “inconsistent” rules are improper, not “more restrictive” rules, and, to borrow from Mark Twain, that is the difference between the lightning bug and the lightning.
To be meaningfully “inconsistent,” the local law must undercut or nullify the purpose and effect of the emergency order. The emergency order is aimed at containing a pandemic that is killing our parents and making our neighbors and children sick. Local mask mandates do nothing to frustrate or undercut that effort.
This is the legal equivalent of the governor declaring that roses are blue. As we all know, roses are red and the governor saying otherwise does not change that. The governor does not get to declare by fiat that something is “inconsistent” by using words that are different than “inconsistent.” We stopped having laws that say things are illegal “whenever the governor says so” a long time ago.
The real issue here is political. Local mask mandates are only inconsistent with the governor’s political posturing that “everything will be ok. Nothing to see here. Move along. No need for mandating masks.” Local mask mandates are a strong signal that everything is not ok and that things are getting worse, and the governor does not like that.
Partisan posturing during a pandemic cannot be stopped, but it should not be allowed to infect the laws aimed at stopping the pandemic. The governor exceeded his authority in declaring as inconsistent with his emergency order the perfectly reasonable, scientifically supported and globally acknowledged (hell, even in Alabama!) step of mandating masks. He should rescind the suspension or it should be challenged and declared illegal.
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