Constitutional Law

Pandemic, Public Health, And The Police Power: A Quick Sketch Of Why States Can Require Wearing Masks In Public

At least no one's questioning gravity. For now.

By Megan E. McKenzie  
on

Wear the mask. Not only because it’s better to be safe than sorry, but because, yes, your state has the right to require you to wear a mask during a pandemic. The states’ power to establish and enforce laws to protect the public welfare, safety, and health, commonly known as the police power, is supported by the Tenth Amendment. While the Constitution has been amended in countless ways since its execution, the police power as it relates to public health has been largely untouched by later construction.

From the Constitution’s early days, the courts have contemplated the government’s ability to protect the “public health,” or society’s interest in assuring healthy living conditions, by regulating society in times of widespread disease. Chief Justice John Marshall defended the police powers in Gibbons v. Ogden, including “inspection laws, quarantine laws, [and] health laws of every description.” Gibbons v. Ogden, 22 US 1, 78 (1824).

Throughout the early 19th century, the whole country had been “roused” by the “havoc” wrought by yellow fever for years. Smith v. Turner, 48 U.S. 283, 341 (1849). It was not long after yellow fever ran rampant through the colonies, and then the states, that the issue of mandatory smallpox vaccination arose before the Supreme Court in Jacobson v. Massachusetts. The Court found that the states had the right to impose upon an individual’s body by requiring that they submit to vaccination for smallpox, and that the individual must give up certain freedoms for the benefit of living in a civilized society. “[T]he 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 free from restraint.” Jacobson v. Massachusetts, 197 U.S. 11, 29 (1905). The Court determined this, in part, on the grounds that, as Edward Richards and Katharine Rathbun so aptly noted, “this is the bargain that makes public health possible.”

Mask requirements, while perhaps irritating, are certainly less of an imposition than a vaccine. They are also legally sound. Justice John Marshall Harlan in Jacobson emphasized necessity — a demonstrable and nonarbitrary threat to public health; reasonability — the “real or substantial relation” of the requirement to protecting public health; proportionality — the interference with individual autonomy ought to be proportional to the expected benefit; and harm avoidance — those posing a risk to society can be required to submit to certain measures for the public good, or, if a person can demonstrate they would be harmed by those measures, quarantine. Similar balancing tests are still applied today, and requiring a mask certainly passes those tests. Richards and Rathbun’s aforementioned article further notes that, for a disease-control program that imposes restrictions on individual liberties to survive a constitutional challenge, the program must meet five standards. The public health requirement must (1) address an actual problem that poses a direct threat to third parties; (2) develop a science-backed control strategy; (3) implement that strategy in the most effective way while minimizing restrictions on individuals, considering the resources available; (4) periodically evaluate the restrictions to show efficacy; and (5) phase out the restrictions when they are no longer epidemiologically warranted. The mask requirement in the face of a confirmed and still rising (in the U.S.) health crisis certainly satisfies those standards. This may be perceived as, perhaps, a low bar for state imposition on individual liberty. But being required to wear a mask to protect the health of oneself and others is a bargain.

Megan E. McKenzie was an attorney at Balestriere Fariello, a trial and
investigations law firm which represents clients in all aspects of
complex commercial litigation and arbitration from pre-filing
investigations to trial and appeals. You can reach firm partner John
Balestriere at john.g.balestriere@balestrierefariello.com.

 

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