Your Monthly Constitutional

YOUR MONTHLY CONSTITUTIONAL By: Stewart Harris

Lincoln Memorial University Duncan School of Law

YOU KNOW IT’S ALL ABOUT THE MASKS, ‘BOUT THE MASKS . . .

Like educators all across our great nation, I’ve spent much of the past six months teaching online and trying to figure out how to teach online, in that order.

As a teacher of constitutional law, I’ve also spent a great deal of time fielding questions about the various measures that various governments have taken to combat the Covid-19 pandemic—especially mandates to wear masks. It’s always about the masks. Usually, these questions begin: “Is it constitutional for the government to . . .”

In general, my answer has been “yes.” This is because of something called “the police power,” the inherent power of every sovereign state to protect its own people. Note the word “state.” States possess all of the powers of any sovereign government, limited only by the U.S. Constitution. In contrast, the national government has limited, enumerated powers, which do not include a general police power. That’s why almost all government efforts to fight the pandemic have emanated from the states. This is not to say that the national government has no role to play. It does: The Feds can lead, co-ordinate, stockpile, fund, support science, and set a good example. But the states are the sharp point of the spear.

These concepts have been recognized for well over a hundred years, most notably in 1905, when the United States Supreme Court acknowledged the power of state governments to meet public health emergencies. At the turn of the twentieth century, the enemy was not a novel coronavirus, not a new strain of influenza, but an ancient enemy: smallpox. If you don’t know what smallpox is, count yourself lucky. It’s a highly-infectious disease that caused untold misery and death, covering its victims with liquid-filled pustules that, once popped, often caused horrible scarring. 1

The good news was that increasingly-effective vaccines were available in the United States. The bad news was that some people refused to be vaccinated. As we’ve all learned lately, vaccines can protect all of society, especially those who cannot be vaccinated (babies, people with medical conditions) only when something called “herd immunity” is achieved. When a significant majority of people are immune, the rate of new infections become low enough that the few remaining outbreaks can be quickly eradicated.

Which is why many states enacted compulsory vaccination statutes in the nineteenth century. And, of course, anti-vaxxers challenged those laws. In 1905, the Supreme Court heard the case of a man who claimed that the Commonwealth of Massachusetts’ vaccination law was unconstitutional. The Court disagreed, recognizing the state’s inherent power to protect the public from infectious disease. While the case is over a hundred years old, it is still good law, as noted in a recent opinion by Tennessee Attorney General Herbert Slatery: “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.’ Jacobson v. Massachusetts, 197 U.S. 11, 38, 25 S.Ct. 358, 49 L.Ed. 643 (1905).” 2 General Slatery then concluded that, pursuant to both national and Tennessee law, a governmental mandate that requires the general population to wear face coverings in public due to the health emergency caused by COVID-19 would be constitutionally defensible. The constitutionality of any particular governmental mandate, though, would depend on its specific terms and the underlying authority of the governmental entity issuing it. 3

Note the caveat: A “governmental entity” that issues a mask mandate must have the authority to do so. Which brings us to the other major question I’ve been asked lately: “How can a bunch of unelected bureaucrats on the Knox County Board of Health tell me what to do?”

Answer: Because that’s what the law says.

Tennessee, like many states, follows a version of the Dillon Rule, which gives the state government control over municipal governments. I’m glossing over some complexity here, but the short version is: 1) all state power in Tennessee ultimately resides in Nashville; 2) municipalities can only exercise those powers granted by the state government; 3) any conflict between state and local governmental action will be resolved in favor of the state.

In our present situation, the Tennessee General Assembly has granted broad emergency power to the governor and the governor has, through several executive orders, delegated some of that power— specifically, rule-making authority—to local public health departments. In Knox County, Section 38-32(f ) of the County Code provides that the public health department must follow the direction of the Board of Health. All of this is set out in great detail in the relevant order of the Board of Health, Regulation 2020-1, which is available online: covid. knoxcountytn.gov/board-of-health.

In sum, the Board of Health’s authority comes from the state, through the governor, and from the county, through the Knox County Commission. So, while the members of the Board are not themselves elected by the public, the public did elect the officials, state and local, who gave the Board its emergency power.

If the public doesn’t like what the Board is doing with that power, the public can contact the relevant elected officials and tell them about it. And ultimately, of course, there’s always the next election.

In the meantime, it’s the law and it’s constitutional: Wear your mask.

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3 A teenaged George Washington contracted smallpox on a trip to Barbados. He survived and suffered only minimal scarring. Much worse was smallpox’s other major non-lethal effect: blindness. We should all be grateful that Washington obtained immunity from the disease prior to the Revolution and without major disfigurement or loss of sight. State of Tennessee, Office of the Attorney General, Opinion No. 20-14, Constitutionality of Governmental Mandate to Wear Face Coverings, July 24, 2020, 5 (quoting South Bay United Pentecostal Church v. Newsom, 140 S.Ct. 1613, 1613-14 (2020) available at: tn.gov/attorneygeneral. Id. At 8-9.

Stewart Harris is the host of Your Weekly Constitutional, available for streaming and downloading on iTunes and Spotify.