Amid the 2020 COVID-19 Pandemic, almost all of us have been subject to requirements or accommodations outside the norm—whether it be working from home, not being able to eat out, or somehow finding yourself immersed in Tiger King. But the main requirement popping up all over the country is: can you be required to wear a mask?
This question has fallen into two main categories – whether individual businesses can require masks, and whether local, state, and federal government can legally issue a mask mandate.
Can Businesses Require Masks?
First, any private business can set certain requirements. Does, “No shirt, no shoes, no service” ring a bell? You have most likely seen one of those signs. That is because as a private business, they can set almost any standard or requirement so long as they are not discriminating against a protected class. And, as a patron, you have a choice as to whether or not you will shop there. Furthermore, masks are a current part of the Center for Disease Control’s plan to slow the spread of Coronavirus. Businesses are not penalized in this instance for following national health and safety guidelines. Think of it this way – if your friend won’t let you wear shoes in their house, you can either take your shoes off or not visit.
While most have accepted that businesses can set their own standards, the real divide comes from whether local, state, and federal mask mandates are constitutional and if they impede any constitutional rights.
Can the Government Issue Mask Mandates?
Since the outset of the COVID-19 pandemic, debates have sparked as to whether the government can force its citizens to wear masks. For perspective, the last mask mandates in America were over 100 years ago in 1918—19 when the Spanish Flu was rapidly spreading through the country.
These days, mask mandates have come from local and state governments. Under the Tenth Amendment of the U.S. Constitution, “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.” In short, states can exercise any power that is not strictly given to federal government. This includes the power to enact laws or ordinances relating to public health and safety, if not preempted by federal law. Even more, states are often given more leeway in times of crisis to protect their individual residents and the space between their borders, especially in times of crisis.
Masks in Indiana
Here in Indiana, Gov. Eric Holcomb announced on July 22, 2020 there would be a statewide mandate for masks in all public spaces where social distancing is not feasible. Failure to wear a mask in these places could result in being charged with a Class B misdemeanor. The executive order for the mandate was signed and put into effect on July 24, 2020. Holcomb’s power to issue this mandate comes from Indiana’s Emergency Management and Disaster Law (Indiana Code 10-14-3), which gives the governor power to take steps reasonably necessary to control, contain, or cope with a public health emergency.
However, law enforcement offices across the state have announced they will not be enforcing the mandate, adding to public pushback. Attorney General Curtis Hill and other Republican congressmen have also publicly criticized Holcomb’s Executive Order creating the mask mandate. In an advisory opinion, Hill wrote that the issue should have been brought to Indiana’s Congress for special legislation. This opinion echoed the thoughts of many, questioning whether the correct Constitutional processes were being followed, and if they were, should the balance of power be changed?
What About a Federal Mask Mandate?
Presently, there is no federal mask mandate. And there was no Federal mask mandate during the 1918-19 Spanish Flu Pandemic. If one were to come down from the Federal Government now, it would be a first and unprecedented. However, that does not mean we are without direction on whether it would be within the Federal Government’s power.
The Federal Government has the power to regulate commerce between foreign nations and between the states. Considering the current pandemic, it is possible a law could be passed under this clause (commonly referred to as the Commerce Clause of the Federal Constitution). But simply because a law is passed does not mean it will be upheld. If the Federal Government were to enact a mask mandate under the Commerce Clause, it would certainly be challenged on constitutional grounds.
While the Pandemic has sent America in a tailspin concerning our day to day lives, it has opened the doors to discussing and honing rights and powers. It is without a doubt that courts issuing opinions now on topics concerning the Pandemic will be cited and referred to for years to come. This could mean upholding those rulings, expanding them, or getting rid of them entirely. That is how we continue defining and adjusting the system as generations and circumstances change.
So, yes, State and Local Government can mandate that the public wear a mask. And you could be criminally charged if you do not comply, but most Indiana law enforcement agencies are not actively citing or arresting individuals who are not wearing a mask. Lastly, a private business can also mandate that a mask be worn or refuse you entry to their business.