BEHIND THE MASK: ANALYZING LEGAL POWERS TO MANDATE FACE COVERINGS IN PUBLIC PLACES AMID A GLOBAL PANDEMIC.

• Author: Pomerance, Benjamin

In 2020, a year when a pandemic ravaged the globe and one of the most controversial presidential elections in modern history roiled the nation, a simple face covering became arguably the most combustible tinder box in the United States of America. (1) For an astonishing number of Americans, compliance with public health guidance about wearing a face mask to help stop the spread of a historically deadly virus morphed into a statement about one's political beliefs and personal character. (2) Presidential debates during a time when crises existed in arenas ranging from rampant unemployment to damaged race relations to a lack of environmental sustainability showcased barbed comments from both candidates concerning one another's decisions to wear or to not wear a mask. (3) Protests erupted from coast to coast condemning government officials who issued executive orders or other forms of mandates requiring mask wearing in public facilities, with some of these demonstrations devolving into violence. (4) Workplaces turned into breeding grounds of controversy over whether employers could require their employees to wear masks on the job and whether businesses could deny services to customers who refused to cover their mouth and nose. (5)

Outspoken opponents of mask wearing offered a variety of reasons for their choice. (6) To some, wearing a mask meant tacitly admitting that the COVID-19 pandemic was something other than a political fiction, a silent confession that they were unwilling to make. (7) To others, the notion of government forcing the people to wear masks violated a spirit of rugged independence that they deemed to represent a core value of America's heritage. (8) Still others felt that wearing a mask could increase their likelihood of being arrested or engaging in negative interactions with law enforcement agents, especially in the jurisdictions with laws or ordinances that prohibit wearing masks in public places. (9) Some deemed the mask to be a bigger personal health risk than the virus itself, citing reports that described medical problems that could allegedly arise from wearing a face covering. (10) To certain Americans, refusing to wear a mask represented a visible symbol of solidarity with former President Donald Trump, who generally did not wear a mask in his public appearances and repeatedly declared that the government should not force anyone to wear a mask who did not want to do so. (11) For a number of people who lived in the minority of areas that were not crippled by COVID-19 outbreaks, wearing the mask simply felt illogical, a protective measure that made sense in urban regions where cases had skyrocketed but had no place in regions where the virus's impact remained minimal. (12)

Conflicts over masks, ranging in scale from rational debates to wanton violence, were perhaps the only aspects of American life in 2020 as boundless as the deadly virus itself. (13) Disputes arose in the largest cities, in the smallest villages, and in communities of every population size in between. (14) Such controversies were not confined to people of any particular education level, income bracket, profession, age, race, gender, religion, national origin, sexual orientation, marital status, medical status, or any other single distinguishing characteristic. (15) While commentators frequently drew political associations between the Republican Party and refusals to wear masks, due in large part to the former President's omnipresent commentary regarding this issue and the subsequent widespread lack of mask wearing at his campaign rallies and White House gatherings, plenty of people who identify with the political left declined to wear masks in public places as well, and asserted that it was their legal right to do so. (16)

Not surprisingly, these heated contentions spilled not only into the halls of the nation's federal, state, and local lawmaking and policymaking bodies, but also into the nation's courtrooms. (17) At the core of these struggles stood a single issue: the question of what power, if any, a governmental entity in the United States possesses to require citizens to take measures that infringe upon their personal liberties during a public health crisis. (18) For this nation, it is not a novel question. (19) A century ago, in the so-called "Spanish influenza" pandemic that erupted in February 1918 and lasted until the spring of 1920, similar conflicts arose over mask-wearing, with recognizable battle lines drawn among the combatants. (20) Dissenters argued that government leaders held no authority to force citizens to wear a mask, a claim that gathered steam after newspapers published photographs of some of those same government leaders disobeying the mask-wearing mandates that they had so vociferously instituted. (21) In 2004, some public health officials were largely ignored when they encouraged Americans to consider wearing masks due to a national shortage of the influenza vaccine. (22)

Comparable contentions emerged in the past, and continue to emerge today, about governmental requirements regarding vaccines. (23) Challenges to these requirements often arise from an individual's contentions that such a mandate constitutes an abridgment of that person's liberty without due process of law, a violation of the Fourteenth Amendment of the United States Constitution. (24) At times, these objections also incorporate arguments that the mandate breaches the free exercise of the individual's religion, which is protected by the First Amendment of the Constitution and extended fully to the states through the Fourteenth Amendment. (25) Other safety-centered requirements, such as wearing a seatbelt while traveling in an automobile, have faced legal challenges, most of them focused on a purported abridgment of one's liberty, at the federal and state levels. (26) In both public and private sector workplaces, disputes regarding compliance with health-focused workplace requirements have historically led to even thornier legal arguments, frequently implicating in recent years provisions of the Americans with Disabilities Act, along with a wide array of federal, state, and localized labor laws, regulations, and standards. (27) Despite this history, or perhaps because of this history, arguments persist on all of these grounds today, amplified loudly amid the deadly backdrop of COVID-19 and the multitude of collateral consequences that this pandemic continues to inflict. (28)

This article addresses these disputes that still, two years after COVID-19's onset, rankle a nation deeply divided about the government's authority amid a public health crisis. In doing so, it attempts to divorce the political and popular rhetoric regarding the significance of wearing or not wearing masks from the legal issues central to this discussion, providing necessary focus on matters of law and principles of public policy rather than campaign slogans and sound bites. Its focus is not partisan victory or defeat, but rather on the legal legacies surrounding these issues and their impacts in these historically difficult times. First, this article examines the power of state governments to impose a mask-wearing requirement, studying the sources from which this power arises as well as the limits of that authority. (29) Next, this article studies existing laws forbidding mask-wearing, evaluating the tension that exists between these laws and the state government's ability to address public health concerns in a time of global crisis. (30) From there, the article turns to the workplace, examining the rights and obligations of employers, employees, and patrons regarding mask-wearing. (31) Lastly, the article concludes with the most inflammatory topic of all: the authority available to the federal government to require mask-wearing on a national scale, together with the limitations of the federal government in instituting such a requirement upon the citizenry. (32) In addressing each topic, the objective shall be to focus on applicable principles of law and policy without delving into the political commentary that continues to split the United States regarding this issue, even while acknowledging the difficulties in remaining dispassionate when the stakes are high and the consequences for error can prove deadly.

1. THE STATES: POLICE POWERS, MODERN CHALLENGES, AND LESSONS LEARNED

   In 1902, the northeastern region of the United States suffered the fatal impacts of an epidemic of smallpox. (33) To address the epidemic, the municipal leaders of Cambridge, Massachusetts, imposed a new ordinance upon all adults within their community: receive a medically approved smallpox vaccination or face a steep fine. (34) A local religious leader, Henning Jacobson, refused to be vaccinated or to pay the penalty. (35) According to Pastor Jacobson, he had been injured by a prior vaccine, as had his son, and he was not eager to subject either of them to such an injury again. (36) Predictably, the dispute soon moved into the Commonwealth's court system, with the Massachusetts Supreme Judicial Court upholding the City of Cambridge's legal mandate. (37)

   Dissatisfied with this outcome, Pastor Jacobson appealed to the United States Supreme Court. (38) Grounding his argument in the language of the Fourteenth Amendment, he insisted that "[c]ompulsion to introduce disease into a healthy system is a violation of liberty" without due process of law. (39) In the case of Allgeyer v. Louisiana, decided less than a decade earlier, the Court had found that the personal liberty interests protected under the Fourteenth Amendment included the right of a man "to live and work where he will", striking down a state statute that forbade certain out-of-state insurance corporations from conducting business in the State of Louisiana. (40) Now, Jacobson called upon the Court to apply this principle to his situation, arguing that the City of Cambridge sought to deprive him of his property...