A lot of people are wondering about the legality of Gov. Northam’s executive order requiring face coverings in public places that took effect on May 29, 2020.
This post is not intended to stir the political pot. We just want to give you the straight facts.
What authority does he have to issue the order?
Gov. Northam has invoked his authority under:
(1) Va. Code Section 44-146.17; and
(2) Article V of the Constitution of Virginia.
Va. Code § 44-146.17 says he can take action on things “relating to the safety and welfare of the Commonwealth in time of disasters.” These powers are fairly broad. Using "his judgment", he can make relevant rules and regulations about the use, sale, production, and distribution of food, fuel, clothing and other goods and services. He can direct or compel evacuation when necessary for preservation of life. Also, there’s a provision that addresses “exceptional circumstances that exist relating to an order of quarantine or an order of isolation concerning a communicable disease of public health threat that is issued by the State Health Commissioner for an affected area of the Commonwealth.”
Article V of the Constitution of Virginia explains what a “governor” is and that he’s the leader of the executive branch. That makes him one-third of the state government. Under the law, he actually has a lot of authority in the matter.
What are the penalties for noncompliance?
If you’re an adult and you’re busted without your mask, you could be charged with a class 1 misdemeanor punishable by up to 12 months in jail and a $2,500 fine. The order says minors won’t be criminally charged for violating the order.
Is the order constitutional?
That’s more complicated than some on both sides of the issue would have you believe. At this moment, mandatory face coverings are the law of the land whether you like it or not. The only way the order can be declared unconstitutional is if a court declares it unconstitutional. There’s always a chance that could happen. However, you can’t willy-nilly say you think it’s unconstitutional and have it be so. If you want to challenge the order, you have to take it to court. Separation of powers and the principle of judicial review vests decisions whether a law is constitutional in the judicial branch of the government.
Who does the order apply to?
It applies to anyone over 10 years old. Adults are being asked to use “best judgment” for children between 2 and 9. There are some exceptions. For instance, you can remove your mask while eating and drinking, or while participating in a religious ritual. The order says you also need one in Uber/Taxi-type situations. Oddly, you can go to the gym, take your mask off and hyperventilate on the equipment to your heart’s content.
Look, I share the annoyance with face masks. I have to wear one in court. They’re uncomfortable. They’re depressing. But politics aside, straying outside the legal apparatus on this one brings you more into anarchist territory than it does patriot territory. There is a place for civil disobedience, but we’re talking face masks during a pandemic, not segregation. However, our firm will be more than happy to defend you if you do get charged for not wearing a mask. While I’m personally fine with the order, I genuinely feel there are some good-faith legal arguments that could be made against it (i.e., as of right now are we actually in a “time of disaster”? Is this really an “emergency” as contemplated in the code?).