Is a mask mandate in the US the same as a law?

Mask up again.
Mask up again.
Image: Reuters/Nathan Frandino
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California’s latest mask mandate went into effect this week, requiring face coverings in all public indoor settings through Jan. 15, 2022.

In counties where local health authorities had already issued mask mandates, the new statewide rule won’t change daily life. And in San Francisco, where vaccination rates are high and community transmission remains relatively low, fully vaccinated residents are exempt from the rule in gyms and workplaces.

For everyone else in the state, however, governor Gavin Newsom’s rule may require some mental adjustment, acknowledged Dr. Mark Ghaly, secretary of the state Health and Human Services Agency. “We know people are tired and hungry for normalcy. Frankly, I am too,” he said earlier this week. “That said, this is a critical time where we have a tool that we know has worked. We are proactively putting this tool of universal indoor masking in public settings in place to ensure we get through a time of joy and hope without a darker cloud of concern and despair.”

California is not the only state that has responded to rising covid-19 case counts and the omicron variant by imposing (or re-imposing) indoor masking directives. To protect residents and prevent hospital systems from being overwhelmed, New York and six other states have made the same call. But the legal status of mandates continues to be questioned.

What is the difference between a mandate and a law?

Masks have become highly politicized during the pandemic. In some places, acquiescence or refusal are easy ways to make a public statement. In California, opponents of covid-19 restrictions argue that Newsom’s mandate is illegal or unconstitutional. One prominent attorney has sparked confusion by asserting that the mandate is not a law.

In fact, mandates and laws are effectively the same thing. The only difference is how they are initiated: Mandates are created and enacted by an executive branch, such as a state governor, rather than through a lengthier legislative process that ends with the governor’s signature and new, durable law. Mandates are also usually temporary, and deal with an urgent issue.

The text of the California rule calls the mask mandate “guidance,” but because it was issued through the California Department of Public Health, an authority that “can take action against you if you disobey it,” it does have the force of law, says Leslie Jacobs, a professor at the University of the Pacific’s McGeorge School of Law.

Who has the authority to issue a mask mandate?

Though the details may vary, state mask mandates can be issued through one of two avenues that give them that force of law.

The first is through “pre-existing laws that say states have to take all measures to deal with infectious disease,” Jacobs says. “In California, the legislature has passed a law saying we want to have an agency that can do all sorts of things with respect to public health dangers,” including infectious diseases. That agency is the California Department of Public Health, which is required to track viruses and other threats under the California Communicable Disease Control Law. Similar structures exist in every state.

US states also have statutes that give governors the power to declare an emergency during a crisis like a pandemic or a natural disaster, which then gives the governor authority to enact laws that would normally be handled by other agencies.

Arguably, under the California Emergency Services Act, Newsom could even enact laws that would normally be handled by the state senate, Jacobs adds, although it’s unlikely that any governor would. But Newsom easily could have unilaterally declared a mask mandate under the emergency act, but he instead asked the California Department of Public Health to do so, and it agreed. It’s worth emphasizing that the health department could have issued a mask mandate even without the emergency act in place.

Importantly, whenever a governor operates under an emergency act, the legislature can always cut short the emergency with a majority vote “whenever it wants to,” Jacobs explains. “So transferring that authority to a governor isn’t that problematic because he has to be operating with the continued authority of the legislature.”

Within states, county health departments are also authorized to enact mask ordinances, as many have. As a general rule, their decrees can be more restrictive than what the state requires, but not less so.

By contrast, the federal government likely cannot impose a national mask mandate that would stand up to legal challenges for a host of reasons (PDF), including the fact that it can not direct state and local police agencies to enforce federal rules, and the Centers for Disease Control and Prevention (CDC) does not have a law enforcement arm. (The Occupational Safety and Health Administration, or OSHA, which has issued president Biden’s vaccine mandate for companies with more than 100 employees, is a federal agency that can enforce laws, but it only oversees workplaces.)

Do mask rules violate civil liberties?

Despite claims that California’s mask mandate is toothless or unlawful, Jacobs says she can’t imagine how any properly issued state mask mandate wouldn’t be legal when a contagious disease is circulating. The only exemption applies to people with physical or mental disabilities that make it impossible for them to wear a mask.

Some people argue their civil rights have been violated by mask laws. They have claimed, with little success, that masks interfere with their right to free speech or the right to bodily integrity. In Michigan, a Catholic school said that masks violate religious freedoms because the faithful “are made in God’s image and likeness,” and masks “shield that image.”

But Jacobs does not see any grounds for any of these arguments. Masks are not intrusive and, more importantly, the mask rule only applies to voluntary activities. “It’s not saying just because you live in California, you have to wear a mask,” says Jacobs. “It’s saying: if you choose to go into an inside environment that is public, the condition is you wear a mask.” In religious liberty cases, she adds, courts would have to decide whether the mask law applies equally to practitioners and the secular population, which it does.

What happens if you disobey the mask mandate?

In California, the state’s new mandate does not mention any fines for non-compliance. Even if it did, however, it would effectively be up to law enforcement whether or not to enforce any penalties. Several California sheriffs have already indicated that they won’t be policing any mask codes.

Such objections do not weaken the mandate substantially, however, or mean that it was poorly executed, Jacobs argues, because in many cases, the rule will be applied. “Lots of people will voluntarily abide by the law,” she says. “So having it out there, even if it’s not enforced, is a good public policy decision.”