Connect with us
[the_ad_placement id="manual-placement"] [the_ad_placement id="obituaries"]


The constitutional question on mandating masks



(Photo by Sharon McCutcheon on Unsplash)

One of the many pieces of misinformation about COVID-19 that have cropped up on social media is that the government does not have legal power to mandate people wear masks and that doing so is unconstitutional.

Matthew Steffey, a professor of law at Mississippi College whose expertise includes constitutional law, disagrees.

“There is ample authority lodged within the government to meet whatever crisis confronts the country, whether that’s an act of terrorism or a military conflict or a hurricane or environmental calamity or, in this case, a public health crisis,” Steffey said.

“In every corner of the world — here and elsewhere —there are government authorities that have the necessary tools to meet this crisis, which would include limiting the movement of people for their own safety and the safety of others, operation of businesses and taking necessary health precautions including the simple act of wearing a mask,” he added.

Steffey compared mandating masks during a pandemic to other ways the government has regulated health and safety in the U.S.

“The government banned smoking indoors,” he said. “The government, in some places, has banned smoking out of doors in public. The government has banned underage drinking. The government has banned illicit drug use. The government regulates the sale of alcohol, the sale of pharmaceutical medications, and all sorts of actions are taken to preserve the public health. That’s why we have drug testing. It’s why we have inspectors in plants that process and package meat.”

Matthew Steffey. Mississippi College professor of law (Photo courtesy MC)

Steffey said that protecting the public during emergencies is a fundamental governmental function.

“One of the first things a functioning government is empowered to do is to act in the defense of its people and to address public emergencies for the health, safety and welfare of citizens,” he said. “It’s the basic reason government exists because collective action is necessary.

“Masks only work, for example, if a large number of citizens wear them properly. Every country on earth that has taken measures to try to cope with COVID-19 has implemented a mask policy. It’s not a lack of constitutional authority that is the issue, it’s a lack of willingness to do what’s necessary.”

Steffey acknowledged that there are practical limitations for the mask mandates. For example, there are exceptions for people who have medical conditions where wearing a mask is not recommended. The Centers for Disease Control and Prevention recognizes the following individuals should not wear face coverings:

  • Children younger than 2 years old
  • Anyone who has trouble breathing
  • Anyone who is unconscious, incapacitated or otherwise unable to remove the mask without assistance

Vicksburg’s mandate says that “Business owners and managers are entitled to rely upon the representations of their customers, patrons and employees regarding whether or not they qualify for an exception from the face covering requirement.” It adds the following exceptions:

  1. Any individual who will not come in contact with any other individual (outside of their immediate household members) or who will be able to maintain strict social distancing of six (6) feet apart from any other individual (outside of immediate household);
  2. Any child under the age of eight; however, all children between the ages of two (2) and Seven (7) years old are strongly encouraged to wear a face covering.
  3. Any individual with a medical condition that prevents the wearing of a face covering;
  4. Any individual who is consuming food or drinks;
  5. Any individual seeking to communicate with someone who is hearing impaired;
  6. Any individual giving a speech for broadcast or to an audience; and
  7. Any individual temporarily removing his or her face covering for identification purposes.

Regardless, business owners can refuse service to individuals not wearing a mask. “Absent some kind of discrimination claim, the company is free to tell patrons, ‘Either wear a mask, or you’re not allowed in,'” Aaron Goldstein, a partner at Dorsey & Whitney LLP specializing in employment and corporate policy, told Business Insider.

“We don’t have enough jail space to lock up everybody who is uncooperative, nor does the government have any interest in doing that,” Steffey said.

“But there are lots of things that limit our liberties, from smoking and drinking to walking in the middle of the street to driving on the correct side of the road, obeying the speed limit and traffic signals, and all that limits our free movement. You need a passport to enter the country, an ID to get on a plane. There are countless ways in which, as our society has become more interconnected, more interdependent, that these interactions are more regulated.”

“A mask is a minimal intrusion on liberty — that only comes into play at this point when people are in public — that would easily be justified by the government purpose. Everything is the balance of the intrusion against the need,” he added.

“It is indeed a minimal intrusion on liberty the same way that our liberty is burdened by a sign at a restaurant that says, ‘No shirt. No shoes. No service.’ It’s literally the same thing.”

Vicksburg City Attorney Nancy Thomas weighed in on the issue Thursday, providing citations to Mississippi code.

“In response to the issue of the legality of the mask mandate, the  law provides that the City has the general authority to adopt regulations to protect the health, safety and welfare of its citizens,” Thomas wrote in an email to the Vicksburg Daily News. “Specifically, Section 21-19-3 of the MS Code states that the city has the ‘power to make regulations to prevent the introduction and spread of contagious or infectious diseases.’ Additionally, pursuant to the emergency powers authorized by Sec. 33-15-17, the Mayor has authority to proclaim that an emergency exists and the city may promulgate ‘regulations and orders necessary for the protection of life.’

“Each proclamation by Mayor (George Flaggs Jr.) has been ratified by the Board of Mayor and Aldermen,” she continued. “The President of the United States, the Governor of the State of Mississippi, Mayor Flaggs and other governing bodies in Mississippi and across the nation have all proclaimed that the COVID-19 pandemic is an emergency that may result in substantial injury or harm to the citizens. The mask mandate is to prevent the spread of COVIID-19 which has infected over 750 citizens from Vicksburg and Warren County and caused the death of 23 citizens in Vicksburg and Warren County.”

Case law also backs up the assertions.

In an article titled “Face covering requirements and the Constitution,” the Washington, D.C. based American Constitution Society cites a 1905 U.S. Supreme Court decision, Jacobson v. Massachusetts, as the basis of law backing the government’s mandates about public health.

“In the midst of a small-pox outbreak, local authorities could mandate vaccination on penalty of a fine for refusal. ‘Upon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members,'” ACS writes, quoting the Jacobson decision.

“Jacobson has continued to be the seminal decision on public health authority in an emergency, against which modern civil rights and liberties are balanced,” the ACS adds.

“The Supreme Court has—and lower courts should—entrust the politically accountable branches with protecting public health and safety,” the organization concludes.

Steffey related his experience overseas with wearing masks, highlighting how differently other cultures see wearing masks.

“When I taught and traveled in Asia a number of years ago, I didn’t know why I saw people in Korea or China wear masks, so I asked one of my students. I thought they were doing it because of the air quality or worried for their own health,” he said. “And the young woman said, ‘No, no. I have a cold. I don’t want to give it to anybody.’ And I thought, ‘How thoughtful and wonderful.’

In Mississippi, Gov. Tate Reeves has put 23 counties under mask mandates in the face of sharply escalating new cases of COVID-19. Since July 15, the Mississippi Department of Health has reported more than 1,000 new cases every day except two. The seven day average is 1,181 new cases per day.


See a typo? Report it here.