The History of Executive Powers to Enforce Mask-Wearing Requirements
The extent of executive powers has come to the forefront of legal conversations as states across the country take varying approaches to addressing the COVID-19 pandemic. In Pennsylvania, Governor Tom Wolf has passed state mandates for social practices such as physical distancing and wearing protective facial coverings in public. These moves have been contentious with some groups, including state Republicans, who question the extent of Wolf’s power as governor to enforce such mandates.
Much of the power that Wolf is exercising for the Commonwealth’s response to the pandemic is being drawn from his executive orders declaring a state of disaster. The Pennsylvania legislature, which is currently controlled by the Republican party, recently attempted to pass a resolution to curtail the Governor’s powers being drawn from the state of emergency. Governor Wolf, however, still retains the power to veto any resolution coming from the legislature, and the Pennsylvania Supreme Court supported his power to do so when challenged in a recent case.
The case addressed by the Supreme Court called into question the state’s emergency code that states that the legislature can pass a resolution terminating a state of disaster at any time, and the Governor “shall issue an executive order or proclamation” also ending the emergency. The Court had to determine whether the phrase “shall issue” meant that the Governor was compelled to agree with the resolution or whether he retained the choice of whether to allow its passage or not. In holding that Governor Wolf maintained veto power over the resolution, the Supreme Court required the legislature to gain a two-thirds vote of the House and Senate to override his veto.
The Supreme Court also held that he retains the power to suspend laws and regulations, control travel to and from certain areas, close businesses that are not “life-sustaining,” and more. They called these powers necessary to the balance between the branches of government, thereby nullifying the legislature’s resolution.
It should be noted that the powers Governor Wolf is currently exercising in response to COVID-19 not only derive from his declaration of an emergency, but also from a law that permits him to impose necessary restrictions for the prevention of communicable disease. The Disease Prevention and Control Law of 1955 gave these powers to the state Department of Health, thus vesting them in the executive branch.
The enforcement of mask-wearing requirements has nonetheless been an ongoing challenge. It is a not a new issue for the United States either. While there are many differences between COVID-19 and the 1918 influenza outbreak, the 1918 pandemic offers an example of another time in which people were required to wear facial coverings in public. Recommendations became requirements in various cities, particularly in the western United States. Those who refused to wear masks in cities like San Francisco, Seattle, and Phoenix were ticketed, fined, and even imprisoned.
While the materials used to make masks in 1918 were not as effective as medical masks made today, the communities that implemented stronger health measures have had better outcomes than areas which did not pass similar requirements. Most of the problems with the efficacy of masks has stemmed from the use of insufficient materials and the lack of other behavioral practices to enhance the effectiveness of masks, such as social distancing.
Resistance to such health measures was not very common in the past, however. While small groups resisted the masks based on arguments that they violated the individuals’ freedoms, such as the San Francisco-based “Anti-Mask League,” most people complied with the mask-wearing requirements, which is somewhat different from the more significant pushback being seen recently. The rules also varied in some cases by occupation. For instance, where someone racking balls in a pool house had to wear a mask, car mechanics did not.
In present days, the Secretary of Health in Pennsylvania issued a universal face coverings order requiring people to cover their mouths and noses when they are in public places and are unable to observe social distancing guidelines. There are, however, exceptions to the requirement such as medical conditions that make mask-wearing unsafe. Law enforcement officers are permitted to issue warnings or citations when individuals do not comply with mask-wearing requirements, so masks must be worn unless there are medical reasons for not doing so.
Ultimately, historic and current push-back against facial coverings has largely ended with the courts deferring to the judgement of state and local elected officials. The executive powers used to issue such requirements are long-established through our country’s history, as illustrated by the 1918 flu and the 1955 law permitting the Secretary of Health to issue disease preventative measures at her discretion, and current holdings of the courts are, similarly, in keeping with such historical precedent.
With contribution from Angela Mauroni, second year J.D. candidate at the University of Pittsburgh School of Law.