By Ross Silverman
On Wednesday, July 22, 2020, Indiana Governor Eric Holcomb announced an Emergency Order to mandate mask wearing in public places beginning July 27, and indicated that violations of the order could potentially result in criminal penalties. Shortly after, Attorney General Curtis Hill issued an opinion questioning the Governor’s authority to criminalize mask violations under the state’s Emergency Management and Disaster Law (EMDL).
Indiana’s Executive Order, while in line with some 30 other states now imposing mask orders, represents a change of positions for the Governor. Holcomb has been an advocate for mask wearing in both word and deed, but, until now, not a mandate. As he indicated at his press conference, there have been “concerning changes” in the state’s trajectory of new COVID-19 cases, and that “By masking up, we can & will save lives & slow the spread of #COVID19.”
I’m an attorney and a professor of public health law and ethics, and have been following these types of legal debates as they have begun to arise all over the country. This challenge is somewhat notable, as the Governor, Attorney General, and a super-majority of the state legislature are all the same political party.
[Before I go further, I have to include the Law Professor’s Caveat: I’m not an attorney for the state of Indiana or local health departments. What I am saying should be read exclusively for educational purposes, and my opinion should not be relied upon as legal advice (the Governor, state health department, and local health departments have their own legal counsel to turn to for legal guidance).]
The Governor has authority, but the AG makes a few good points
Having reviewed the Attorney General’s opinion, the Executive Order, and the EMDL, as well as other, related state laws and decisions, I disagree with the Attorney General’s conclusion.
Indiana law grants the Governor ample authority to take this action. That said, I do believe the opinion written by the Attorney General raises several significant issues worth noting. These, and other concerns, should be addressed as the state learns lessons from its pandemic response efforts and prepares itself for future emergencies.
In his opinion, the Attorney General raises several arguments worth further examination:
- The state legislature granted to Governor Holcomb and the executive branch departments he oversees (like ISDH) their Emergency response authority.
- Under these laws, the legislature did not grant the Governor authority to issue decrees making violation of the executive order a criminal act. Alternatively, if they did, they either (a) gave away more power than they were allowed to under separation of powers doctrine, or (b) the law should include more specific guidance to the executive agencies to help the agencies avoid overreach.
- The legislature should be more involved in long-term pandemic response efforts, and the use of emergency powers authority for months on end is concerning.
I agree with points 1 & 3, and, as outlined further below, disagree with 2.
The Language of the Executive Order
Before examining these arguments, it is helpful to review the actual “Compliance” section of Holcomb’s 30 day mask mandate [emphasis mine]:
The purpose of the requirement in this Executive Order is to protect the health and lives of Hoosiers, to ensure businesses will remain open, to allow schools to reopen and operate safely, and to allow Hoosiers to continue to participate in their chosen activities. State and local health departments shall be responsible for enforcing compliance through education about the importance of wearing face coverings and dispelling myths and misconceptions about the use and/or the benefits of the requirement. If the applicable data on the virus does not improve or continues to worsen in our State, there may be little choice but to reverse course and return to a prior stage in our reopening plan for Indiana. Such measures could include re-imposition of more stringent measures such as business closures or other burdensome limitations or implementation of new restrictions to help protect the health, safety and well-being of Hoosiers.
This is much more tame than the Attorney General’s analysis, or the press coverage I saw this weekend, made the order out to be. The order itself does not mention criminal prosecution. In fact, this section, which is an excellent example of using legal documents for health communication purposes, reads more like a combination of: “Keep this up and we’ll give you a stern talking to,” and “Don’t make us turn this car around.”
Like every other order Indiana’s Governor has issued during the pandemic, this order does include a provision that would allow local authorities (in this case, counties, political subdivisions, or school corporations) from imposing more stringent requirements.
The General Assembly delegated broad emergency powers to the Governor
Under the EMDL, the state legislature granted the Governor broad powers to declare and respond to an emergency like the COVID-19 epidemic, which threatens the public health, safety, and welfare of Hoosiers. Indiana Code, Section 10-14-3-11(b), states the Governor may “Make, amend, and rescind the necessary orders, rules, and regulations to carry out this chapter with due consideration of the plans of the federal government.” He may, under subsection 3 of that law, “Take any action and give any direction to state and local law enforcement officers and agencies as may be reasonable and necessary for securing compliance with this chapter and with any orders, rules, and regulations made under this chapter.” And under section 4, the Governor may “Employ any measure and give any direction to the state department of health or local boards of health as is reasonably necessary for securing compliance with this chapter or with the findings or recommendations of the state department of health or local boards of health because of conditions arising from actual …natural disasters or emergencies.”
In another part of the Emergency Law (section 10-14-3-12(d)), the legislature goes even further to reinforce the governor’s extremely broad authority to act in emergencies. This section states that, in addition to the other powers granted to him, the Governor may “Use all available resources of the state government and of each political subdivision of the state reasonably necessary to cope with the disaster emergency.” In Section 10-14-3-24, the legislature granted the Governor the authority to direct the law enforcement authorities of the state to enforce orders, rules, and regulations issued under the Emergency Act.
Since the Attorney General argues that the Governor has exceeded his authority to act in the name of the public’s health by directing the Indiana State Health Department (ISDH) enforcement of this order, it also is useful to examine the laws passed by the state legislature to govern the state health department. What we find there is that the General Assembly has already given very broad authority to that agency to control communicable disease outbreaks, even if there were not a public health emergency in place. Under Indiana Code Sec. 16-19-3-9, the General Assembly granted the state health department the authority to “do what is reasonable and necessary for the prevention and suppression of disease.” Furthermore, numerous provisions in the state infectious disease control law indicate that violations of public health rules can result in criminal prosecution. Finally, violation of some public health-related orders, such as quarantine, can result in prosecution as a Class A Misdemeanor, an even stronger penalty than what is proposed under the mask Emergency Order.
COVID-19: A perpetual public health emergency?
Allowing the state’s Governor to act in near perpetuity under emergency powers authority would raise significant concerns. As we approach nearly half a year of epidemic-related emergency orders, we are in legal “uncharted waters.” We know epidemics can continue on for many years (as the Spanish Flu epidemic did). Furthermore, in this particular epidemic, our state and national public health responses are hindered by shortages in COVID-19 testing and treatment supplies and infrastructures insufficient to contain the outbreak.
However, that is not to say that the use of emergency authority should be fully protected from review, or that there cannot be overreach. Under Indiana Code Section 10-14-3-12, if the General Assembly wished, it could “by concurrent resolution…terminate a state of disaster emergency at any time.” Under Constitutional principles, if the General Assembly wanted to “move in the fences” and put additional limits in place on the Governor’s actions, it could do so by passing amendments to the Emergency laws. The legislature has done that before: in 2010, when it prohibited Emergency actions from restricting lawful firearms possession, sale, and use, and the Governor acknowledged those restraints by protecting gun and ammunition sales in his early Executive Orders. In addition, throughout this process, the Governor and the legislature remain publicly accountable, and may be petitioned or voted out of office, if enough people oppose the actions they are taking.
Courts also should be prepared to review these actions. However, as Chief Justice Roberts recently discussed in a case related to California’s Executive Orders, courts should recognize that the Governor’s actions are reasonable when they can demonstrate their actions to protect the public’s health are being guided by the best available science, even when that science is “fraught with medical and scientific uncertainties” and new information may lead the officials to “actively shap[e] their response to changing facts on the ground.” (See also Marshall v. United States, 414 U. S. 417, 427 (1974).) I believe Governor Holcomb’s actions in this circumstance are guided by science and are reasonable, given the local rise in infection rates.
On public health’s enforcement power
Regarding enforcement: while criminal prosecution is “on the books,” as you saw in the order’s “compliance” language itself, the driving purpose behind issuing the order is to increase the impact of ongoing mask-related public health education/communication efforts. As Governor Holcomb tweeted Wednesday: “The state will approach enforcement of the face covering requirement with an emphasis on education. A penalty can be levied under the authority of state law. Local governments may impose more restrictive guidelines.”
This approach aligns with core public health ethics and legal principles, which advise that, to maintain public trust and cooperation with public health interventions, agencies should use the least restrictive, feasible means possible to pursue public health goals. Indiana’s law governing infectious disease control echoes this maxim in Sec. 16-41-9-15: “In carrying out its duties under this chapter, a public health authority shall attempt to seek the cooperation of cases, individuals with a communicable disease, contacts, or suspect cases to implement the least restrictive but medically necessary procedures to protect the public health.”
Should such education and cooperative approaches prove unsuccessful to address the concern — for example, people ignoring direct requests to mask up, businesses failing to enforce blatant violations of the order, or acting out in response to such requests in ways that may further endanger others — it would then be appropriate to step up to a stronger corrective approach, such as issuing a fine, closing down the business or taking action against their license, or, in extreme cases, criminal prosecution.
Overpolicing and Underfunding
A few cautionary words about public health mandate enforcement. If you haven’t yet read the excellent critique of mandates by Rob Gatter and Seema Mohapatra, go and do it right away. They point to concerns about the opportunities for members of non-white communities to adhere to such mandates, and troubling examples of discriminatory enforcement of public health measures against black and brown community members.
That said, the Governor’s placement of enforcement responsibility with the state health department (and not, say, police) is itself a mixed blessing.
It is most appropriate for the state health department to oversee the application of this public health intervention. That said, the department risks the degradation of trust by being seen in a very public way as being the “nanny” of the “nanny state” if what is perceived as heavy-handed enforcement becomes the way the media discusses, and most people interact with, the department. This would undermine the countless ways state and local health departments work to help individuals and communities flourish.
Even if the public health department has the enforcement power, is it feasible for the department effectively to apply it? This is a question I find myself asking regularly as I review national, state, and local public health COVID-19 response efforts.
Thanks to decisions made year after year by state legislators and officials, Indiana’s public health system has withered. It consistently ranks among the lowest funded in the country. The department was redlining before COVID-19 struck, and, like most health departments nationwide, state and local public health staffing levels have been dropping for more than a decade.
While the infusion of some federal funds and savvy collaborations with academia and the private sector have helped it mount its epidemic response, practically, it is not well positioned to engage in local enforcement. And though the mask mandate may help COVID-19 response efforts, it is no substitute for a robust public health system.
