[The following is an advisory by attorney Steve Duggins, president of the local homeschool association, to hundreds of home educating families looking forward to the prom Friday night — the first day the mask command takes effect in Hamilton County — and to taking part at the home education expo July 17 and 18 at Camp Jordan. Mr. Duggins is minister at Restoration Vinyard Church in Chattanooga. Craig Northcott, a district attorney in Coffee County, and others say Gov. Lee’s edicts and those premised on authority delegated by him are unenforceable. — DJT]
It is perhaps against my better judgment that I dip my toes a bit further into the pool of legal discussion. I am concerned that people are going to interpret my comments below as expressing an opinion regarding what the law SHOULD be.
My comments are NOT intended as such. Rather, my comments below are intended only to point out some realities about what the law IS (either as enacted by the legislature or interpreted by the courts). Again, the references to court opinions are not intended to express an opinion regarding how the courts should have ruled. I am simply calling your attention to realities of how they ruled. Since a number of the posted comments seem to be suggesting that the executive order is not a law or that we at least should not have to comply with it, I offer the comments below.
One more caveat first: I fully realize that the following is not a complete discussion. I could literally write all week and not present a complete discussion of the legal issues.
Temporary restraining order? Waste of time
1. If anyone believes strongly enough in their position that the mandate is unconstitutional, illegal, or otherwise unenforceable, I invite you to attempt to obtain a temporary restraining order against enforcement of the mandate. If you obtain that TRO by 7:00 p.m. on Friday, we will not require masks. My personal opinion—in part because of some of the points of law I note below—is that your TRO attempt will not be successful and that you will have wasted your time and money by pursuing the TRO. But I nevertheless invite you to try if you are passionate enough about the issue and if you believe the legal comments below do not accurately capture the realities of our situation.
2. The Tennessee General Assembly enacted the following years ago:
The governor is responsible for addressing the dangers presented to this state and its people by emergencies. In the event of an emergency beyond local control, the governor . . . may assume direct operational control over all or any part of the emergency management functions within this state . . . The governor is authorized to delegate such powers as the governor may deem prudent. . . . Pursuant to the authority vested in the governor . . . the governor may issue executive orders, proclamations, and rules . . . Such executive orders, proclamations, and rules have the force and effect of law. . . . The governor shall employ such measures and give such directions to the department of health . . . as may be reasonable and necessary for the purpose of securing compliance with this chapter or with the findings or recommendations of such agency by reason of conditions arising from emergencies or threats of emergency.
This enactment is codified at Tenn. Code Ann. § 58-2-107.
3. Gov. Lee has delegated authority to the Hamilton County Health Department.
Possibly more than 30 days in jail
4. I previously noted that violation of the mandate would constitute a Class C misdemeanor carrying a potential penalty of up to 30 days in jail and a $50 fine. I’ve also seen some indication of the possibility that it is a Class B misdemeanor which carries a potential penalty of up to 6 months in jail and a $500 fine. I haven’t done the research necessary to make a conclusive determination of this issue and probably won’t.
5. In a very recent Supreme Court case in which a church sought a TRO against some COVID-19-related restrictions in California, the dispositive concurring opinion of Chief Justice Roberts — when denying the church’s request for a TRO — stated:
“The precise question of when restrictions on particular social activities should be lifted during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement. Our Constitution principally entrusts “[t]he safety and the health of the people” to the politically accountable officials of the States “to guard and protect.” Jacobson v. Massachusetts, 197 U. S. 11, 38 (1905). When those officials “undertake[ ] to act in areas fraught with medical and scientific uncertainties,” their latitude “must be especially broad.” Marshall v. United States, 414 U. S. 417, 427 (1974). Where those broad limits are not exceeded, they should not be subject to second-guessing by an “unelected federal judiciary,” which lacks the background, competence, and expertise to assess public health and is not accountable to the people. . . . That is especially true where, as here, a party seeks . . . emergency relief in an interlocutory posture, while local officials are actively shaping their response to changing facts on the ground. The notion that it is “indisputably clear” that the Government’s limitations are unconstitutional seems quite improbable.”
Intrusive SCOTUS rulings
6. The Jacobson case cited in the very recent Supreme Court noted above was also a Supreme Court case — one that dates all the way back to 1905. In that case, which arose out of a smallpox epidemic, the Supreme Court upheld the constitutionality of compulsory smallpox vaccination (which, at least in my opinion, is more intrusive and invasive than a mask requirement).
The United State Supreme Court also stated the following in that opinion:
“The authority of the State to enact this statute is to be referred to what is commonly called the police power . . . Although this court has refrained from any attempt to define the limits of that power, yet it has distinctly recognized the authority of a State to enact quarantine laws and ‘health laws of every description;’ . . . According to settled principles the police power of a State must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety. . . It is equally true that the State may invest local bodies called into existence for purposes of local administration with authority in some appropriate way to safeguard the public health and the public safety. The mode or manner in which those results are to be accomplished is within the discretion of the State . . .”
7. Many face mask ordinances were enacted during the pandemic of 1918-1919. To the extent that they were challenged in court, courts generally upheld them.
8. Did anyone notice that our liberties (particularly travel liberties) were restricted during the aftermath of the recent tornado? Did anyone contend that was illegal or unconstitutional?
9. Did anyone notice that our liberties were restricted when the Tennessee General Assembly enacted a law in 2007 prohibiting smoking in most enclosed public spaces? Did anyone contend that was illegal or unconstitutional? I realize the “don’t smoke in public” law isn’t a perfect analogy to the present situation, but there are some significant similarities.
10. For those that contend the current restrictions are unprecedented in the United States, I respectfully suggest that history tells otherwise. Again, I am not expressing any opinion regarding what “should be.” I am simply trying to give a little more background information on the legal realities that helped inform our decision to comply with the mask mandate.
11. Finally, I am smiling as I submit my final remark because I submit it somewhat — but not entirely — in jest. Please note that we have a long tradition of restricting some liberties at prom. Each year, we inevitably have some couples that “get a little too close”. When that has happened, our chaperones have historically imposed a bit of “involuntary social distancing” between them. Yes, we have regularly infringed upon their “freedom of expression” and “freedom of association” in that context. I chuckled when I saw a private message from a friend this morning. She was passing along her childrens’ response to the mask mandate: “Well, mom, the masks will cut down on the makeout couples.” I love their positive spin on circumstances that are disappointing to us all. Perhaps we could all look at this as a chaperoning enhancement?
So . . . let’s all try to make the best of this and work together to give our seniors the best prom that we can under the circumstances while still obeying the laws of the land until such time as those laws may be overturned.