Clarity on 'Police Power' Needed, for Starters

Attempting to better understand the legal basis of mask mandates, I ran across a post, "To Mask Or Not To Mask? It's Not a Constitutional Question," in the Blue Sky Blog of the Columbia School of Law, that its authors should be embarrassed about.

First, some context: I take both the pandemic and individual rights seriously. I wear a mask and recommend that others do so. Given that the coronavirus is transmitted most easily by respiratory droplets, one need only consider this diagram and integrate it with simple ballistics to realize that we needn't wait for definitive scientific proof that masks can make others safe from a wearer and confer some protection to the wearer as well: The virus survives and is transmitted in droplets, and the chance of infection goes down as the size and number of the droplets contacting your mucous membranes decreases.

It should also be obvious that any businessman has the right to require masks or other protective measures on his premises. I would venture to add that if people were generally more actively and selfishly interested in preserving their health and quality of life, more would be keenly interested in protecting themselves and others, and in patronizing businesses that were on the same page.

Although the government does have a proper role in a pandemic, I have not reached a definite conclusion one way or the other as to whether mask mandates are part of that role. If they are, they need better justification (legally and in terms of helping the public understand) than I have heard from most ham-handed governments, and definitely better than I did here.

Relevantly, the whole "mask question" has been inappropriately politicized by most "sides." Roughly: (1) President Trump has made masks into some sort of loyalty test to him, personally; (2) the left routinely conflates masks with other measures, like the liberty-violating and economy-destroying "lockdowns;" and (3) many on the right, not good at standing up to the left in the first place, fall for the mask-lockdown package-deal, and fight tooth-and-nail against both. Worse, others (conservatives and populists) abandon argument altogether, choosing to make fools of themselves, such as by calling masks, "face diapers."

Masks are easy to argue for on selfish grounds, and it should be easy to make it apparent that opposing mask mandates is (a) ridiculous if based on the grounds that they do not offer any protection against catching or spreading the disease, and (b) requires arguments based on a deeper understanding of the law than most opponents demonstrate.

CSL's Blue Sky Blog instead attacks "conservatives" by smearing them as Klansman. This they do at the outset by mentioning an admittedly interesting case in which someone sued to be able to conceal his identity by dressing like a ghost. The Klansman -- I guess like anyone else who would question the propriety of the government ruling on face coverings -- is an "ultra-conservative." (As a nun who taught one of my brothers might have put it, "There are conservative racists and liberal racists; and there are conservatives and liberals who aren't racists. A conservative -- even an 'ultra' one is not necessarily a racist.") I'm not a conservative, but thanks, guys! Since lots of lefties stereotype me as a conservative, know that you have started your article by causing me to have to look past a grave and undeserved insult.

The condescending line about masks not being mentioned in the Constitution didn't help, either. When the reader thinks something like No shit, Sherlock! you could be on the verge of losing him. [On looking through this piece again, it seems sloppy, too. Of course the Constitution makes mask-wearing not unconstitutional. That's a different question than whether or how and when a government can order their use.] Here are a few other things I am pretty sure the Constitution doesn't mention by name, but probably does have relevant things to say about, directly or not: lynchings, marijuana, abortions, the internet, and nationalization.

The argument is intended to look -- at least to a layman like me -- to be on the order of common sense to those in the know. Hell, maybe in the context of the discipline of constitutional law, masks aren't a constitutional question. But I can't really tell from this post, whose argument, once the high-handed insults are distilled away, amounts to this:

Image by Michael Amadeus, via Unsplash, license.

The Tenth Amendment states that all "powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." The Tenth Amendment empowers state and local officials to pass and enforce necessary laws.

...

[A]ll constitutional rights (the First Amendment included) are subject to the government's "police power" -- that is, the government's authority to protect the health, safety, and welfare of the community. Indeed, the U.S. Supreme Court has long held that protecting public health is a sufficient reason to institute measures that might otherwise affront the First Amendment or other provisions in the Bill of Rights.

...

Based on the preceding doctrines, the Supreme Court has consistently held that the government can act if its restrictions advance a compelling state interest in the least restrictive manner. The government does this routinely. [bold added]

This will sound like case closed to many reasonable people, although I am very uncomfortable with the vagueness that the legal idea of police power has had from its inception and the fact that (predictably for that reason) it gets abused. Indeed the FDA, which the authors cite as an anodyne example of government regulation (which I gather is one sense of "police power" as it is used today), would appear to be a disastrous abuse of late.

Surely, there are or should be limits on the police power, if it is at all a legitimate concept. I can see mask mandates or some kind of requirement for them fitting within those limits (or the limits of a proper government), but the state-wide, unscientific, and indefinite "lockdowns?" Absolutely not, but the fact that so many people conflate those issues is hindering a productive discussion to say the least. The authors do not themselves raise the issue of lockdowns (i.e., indefinite universal house arrest), but they should have, given how much masks and lockdowns have been comingled in the public debate.

It is helpful to know what the legal basis -- proper or not -- is for current pandemic restrictions and mandates. But it is wrong to coat this information in condescension or to ignore something that both obscures the issue and raises legitimate questions about one's own position.

-- CAV

P.S. To their credit, the authors note that, "We do not have a constitutional right to infect others." It is precisely here, and not at some "state interest" that we should begin any discussion of what government ought to do about a pandemic.