Governor's mask mandate raises questions about Constitution
December 10, 2020
CODY – The recent establishment of county and statewide face mask orders has people questioning the constitutionality of those measures enacted by local health officers and Gov. Mark Gordon.
“I think it is an act or desire to do something when they don’t know what to do,” said Bob Ferguson, vice chairman of the Park County Republican Party, who opposes the measures.
Many residents, on social media and other public forums, have criticized Gordon’s move to declare an emergency order, citing section 38 of the Wyoming Constitution, making the argument it’s the duty of the state legislature to make emergency proclamations related to health concerns.
“If the legislature passed it, I may not have liked it, but I might not have fought the battle as unconstitutional,” Ferguson said. “When you’re talking about criminal and civil penalties that’s where you want a legislator.”
Under section 38, “each competent adult shall have the right to make his or her own health care decisions,” while going on to say that, “the legislature may determine reasonable and necessary restrictions on the rights granted under this section to protect the health and general welfare of the people or to accomplish the other purposes set forth in the Wyoming Constitution.”
But could Gordon’s action be considered legislative?
“I think the governor does not have the right to tell people how to be treated,” said Cody resident and longtime county GOP party member Carol Armstrong.
Wyoming State Statute 13 appears to give the governor power to declare an emergency as does State Statute 19.
“The governor has general direction and control of the office of homeland security ... and in the event of disaster beyond local control, may assume direct operational control over all or any part of the homeland security functions within Wyoming,” to “make, amend and rescind the necessary (emergency) orders.”
Wyoming State Statute 35-4-115 defines a public health emergency as “an occurrence or imminent threat of an illness or health condition caused by an epidemic or pandemic disease,” among other scenarios.
Ferguson said he supported Gordon as governor before the pandemic but now worries he has “looked very weak,” since it began, unsure about his overall support for him at this point.
“When you’re the chief executive, everything is up to you,” he said.
Gordon did get unanimous support from Wyoming’s Washington D.C. delegation, with Sens. Mike Enzi and John Barrasso joining Rep. Liz Cheney in standing behind the mask mandate.
Within Gordon’s order that runs through Jan. 8, restaurants and bars must close from 10 p.m.-5 a.m. This order will directly affect New Year’s Eve celebrations in Cody.
One business that will be heavily impacted by this rule is the Irma Hotel and Restaurant, a well-known local NYE celebration point.
When reached by phone Tuesday evening, owner Mike Darby said he was unsure whether his business plans to submit an exemption, but under any scenario he anticipates smaller-than-usual attendance for the annual gathering.
“The governor is doing what he needs to do,” Darby said. “Hopefully we can get over it after it’s gone and celebrate with a COVID-free party.”
Under Title 35-4-103 in Wyoming law, county health officers are granted the power to make health-based restrictions and orders.
“The county health officer shall upon declaring any city, town or other place to be in quarantine, control the population of the city, town or other place as in his judgment best protects the people and at the same time prevents the spread of the disease,” the law reads.
Ferguson said this law, “unintentionally turned over” powers intended for elected officials into the hands of health officers and said he would like this legislation reexamined in the future.
On Dec. 3, the Park County Republican Party passed a resolution calling on Park County Public Health Officer Dr. Aaron Billin and the Park County commissioners to rescind the local face mask order.
Neither Billin nor the commissioners heeded this request, as Billin enacted a new but similar order the very next day.
At the commissioners’ meeting on Tuesday, this renewal was not addressed in the agenda or commented on.
In Park County, health officers are appointed by the county commissioners. Billin was originally appointed in 2015 and is currently in the middle of his second four-year term.
Some from the public have asked Billin to resign or the commissioners to fire him. The suggestion is not unheard of, as the Washakie County commissioners recently fired their county’s health officer for not conferring with the board before issuing orders.
Not a single member of the Park County commissioners has intimated he would like to pursue such an action.
“I think Dr. Billin has done a great job, he certainly has faced a lot of pushback,” said chairman Joe Tilden. “I think he realizes the importance of keeping the economy open. He did not put in a mask mandate without serious soul searching.”
Federally, the Supreme Court tackled this issue in the 1905 landmark case of Jacobson v. Massachusetts.
In response to a smallpox outbreak, the city of Cambridge, Mass., mandated all adults 21 years or older undergo vaccination for the virus under the threat of a $5 penalty. Henning Jacobson challenged this order and cited the 14th Amendment’s due process clause, as well as violations of his personal liberty guaranteed in the United States Constitution.
In a 7-2 decision, the Court upheld the law and said, “the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint,” while also citing the 10th Amendment, which gives states the right to enact legislative regulations out of the need for public health.