Are mask mandates constitutional? Utah law professors say state has power to protect public health

Completed face masks are stacked in a pile at the Viridian Library in West Jordan on Tuesday, July 7, 2020. Salt Lake County and Stitching Hearts Worldwide have partnered to make 250,000 face masks with the help of volunteers.

(Kristin Murphy, KSL, File)

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SALT LAKE CITY — Hundreds of thousands of Utahns are now living in areas that require masks in public to combat the coronavirus pandemic. Salt Lake, Summit and Grand counties have all received permission from Gov. Gary Herbert to mandate face coverings in public spaces, and the state will require masks at schools this fall.

While mask mandates strike some as a commonsense way to protect individuals and communities, others see them as onerous impositions on their civil liberties. asked several Utah-based professors where the legal authority for such mandates comes from.

The professors agreed that, given the authority granted the states by the Constitution and the wide latitude previously given by the Supreme Court in matters of public health, states are well within their rights to impose mask mandates. They pointed to the 10th Amendment: "The 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 other words, as University of Utah law professor Erika George put it, "Whatever is not in the federal government's mandate is left to the states.

"So people would be pointing to that to say, this is within the state police power," George said.

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George's colleague at the U. law school, Teneille Brown, said the U.S. Supreme Court "has made it really clear that the states, by and large, get to regulate public health." Brown said as long as the state bases its requirements in science and evidence, provides due process and doesn't apply health standards in a discriminatory way, the courts are likely to uphold public health mandates.

One such example George mentioned is the 1905 Jacobson v. Massachusetts Supreme Court decision, in which the court upheld the authority of states to require vaccinations. "So if that precedent is looked to," George said, "that speaks to me of a pretty broad police power to protect public health."

The professors said citizens might object to mask mandates on First Amendment or 14th Amendment grounds — that the masks violate their freedom of expression, or represent a restriction of liberties without due process. But none thought such arguments would be successful.

But what if masks were mandated not by a state, but by the federal government?

"That would be more dicey," Brown said, "because of this issue that the federal government has to have some constitutional hook to regulate." She said it could only regulate public health if it impacted interstate commerce in some way, or occurred on federal lands.

But BYU law professor Justin Collings said current court precedent would probably cover the federal government in that regard as well. "The way that the Supreme Court has interpreted the commerce clause" — the federal government's authority over interstate commerce — "since the 1930s, I don't think (it could be successfully challenged). Certainly, it's a substantial impact on interstate commerce if you've got a lot of the population getting sick or dying."

Collings said that, despite their legality, mask mandates provoke understandable opposition given the "long libertarian streak" of American culture. "There were mask mandates in response to the Spanish Flu in 1918," Collings said, "and there were anti-mask leagues that formed to oppose them. So this is nothing new."

Andrew Bibby, a Utah Valley University history professor and assistant director at UVU's Center for Constitutional Studies, said it's important to recognize the concerns of mask opponents. "Just from a human point of view," Bibby said, "let's start by acknowledging that both sides have legitimate fears."

Just from a human point of view, let's start by acknowledging that both sides have legitimate fears.

–Andrew Bibby, assistant director at Utah Valley University's Center for Constitutional Studies

"Each side may harbor tyrannical or selfish motives," he said, "but my experience has been that most people are not operating in bad faith. So a healthy start to the mask debate could begin with the assumption that the other side has something meaningful to say, that they might have a point, and that you might learn something from dialogue with the opposite point of view."

Still, Bibby said it does appear that mask mandates have a solid legal basis, whatever one's personal opinion of them. "Most people are surprised to find out how much power states have to make their own decisions when it comes to public health," he said. "Most states allow their businesses to hang signs that say 'No shirt, no shoes, no service.' We should not be surprised if most states allow businesses to add 'no mask.'"

Brown compared mask mandates to anti-smoking ordinances. "Just like with not wearing a mask, smoking hurts other people’s health, and so restrictions can be placed on individual liberty in order to achieve public health goals," Brown said.

George thinks it's important to remember that government power is broad but not unlimited when it comes to public health. It is "constrained by a review that would look to whether or not it's rational, whether it's logical, it's legitimate."

"And what has been the case in the past is, public health has been deemed to be a legitimate government interest," George said. "That's totally within the purview of their power — provided the power is not abused."

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Graham Dudley reports on politics, breaking news and more for A native Texan, Graham's work has previously appeared in the Brownwood (Texas) Bulletin and The Oklahoma Daily.


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