TLDR-“Too Long Didn’t Read”
The governor has not gone rogue with his most recent mask mandate. Indiana Code 10-14-3 specifically grants the Governor these powers. That Code was written and duly enacted by the Legislature. That law (not Holcomb’s order) created by the Legislature makes violation a B misdemeanor. Law enforcement officers refusal to uphold duly enacted law is a very dangerous slope, especially when done in following popular opinion instead of the rule of law. We are a nation of laws not mob rule.
In response to Governor Eric Holcomb’s declaration of a public mask mandate, many have questioned whether the Governor has the power to mandate the wearing of facial coverings. To shed some insight to the discussion, this essay shall briefly summarize the order, and then rebuff the critiques through three main points. First, Governor Eric Holcomb previously established mask mandates in two other executive orders. Second, Indiana Code 10-14-3 specifically grants the Governor these powers. Third, Indiana Attorney General Curtis Hill’s arguments in his official opinion are terrifically confused on this issue. And finally, the refusal of law enforcement to uphold our laws due to popular opinion is deeply troubling.
Before arguing about the merits of Executive Order 20-37, it would behoove us to familiarize ourselves with its content.
The mask mandate is a directive that “every individual within the State of Indiana shall wear a face covering over their nose and mouth” in three different situations: inside public places, in cramped outdoor public spaces, and while using public transportation for those over 8 years old. The Governor goes on to define face coverings, and list a few exemptions. With respect to compliance, the Governor’s Executive Order states that “State and local health departments shall be responsible for enforcing compliance through education about the importance of wearing face coverings and dispelling myths and misconceptions about the use and/or the benefits of the requirement.” Executive Order 20-37 ends with the clarification that “nothing in this Executive Order prohibits a county, political subdivision or school corporation from imposing more stringent requirements than this Executive Order.”
That is it. Nowhere in the Order does Governor Holcomb establish a law. Nowhere does he state that a violation is a B Misdemeanor. And, so far as we can tell, at no point did Governor Eric Holcomb cross a proverbial Rubicon and become Indiana’s version of Julius Caesar. The Governor issued a directive.
So now that we’re all clear on that, we can refute the criticisms some have made against it by articulating a few facts.
First, since this is an argument about law, we need to recognize established precedent. To that end, let us recognize that Governor Holcomb has issued directives to require masks before.
In Executive Order 20-26, the Roadmap to Reopening, Governor Holcomb ordered that “Retail businesses should require employees to wear face coverings and should consider requiring customers to wear face coverings.” In restaurants, “All employees and staff shall wear face coverings.” In personal service businesses, “employees, and customers or clients to the extent practicable, must wear face coverings.”
Executive Order 20-28 continued these requirements. All businesses were ordered to comply with social distancing guidelines including “employing separation measures such as wearing face coverings or using barriers.” In section 10, Governor Holcomb ordered that in Restaurants and other retail food establishments, “All employees and staff shall wear face coverings.”
All this to say that prior to Executive Order 20-37, Governor Holcomb ordered the wearing of face coverings in particular scenarios on at least two other occasions. Your Facebook friends, Indiana Attorney General Curtis Hill, and law enforcement officials raised not a peep in protest to those orders. This might suggest that the grievances aired regarding Executive Order 20-37 are not truly based in questions of the Governor’s ability, but rather are childish hissyfits in response to the Governor’s ability now applying to the general population rather than only minimum wage workers in assorted retail environments. Folks complain because the Governor’s established ability now affects them.
But let’s assume, for the sake of argument, that folks have genuine curiosity regarding the constitutionality of Executive Order 20-37, and go from there.
According to Indiana Code 10-14-3-11 (a law created and duly enacted by the Legislature), “The governor has general direction and control of the agency and is responsible for carrying out this chapter. In the event of disaster or emergency beyond local control, the governor may assume direct operational control over all or any part of the emergency management functions within Indiana.” Note the “all” and “any”. With respect to what, specifically, the governor can do, Indiana Code 10-14-3-11 (b)(2) states that the Governor can “Make, amend, and rescind the necessary orders, rules, and regulations to carry out this chapter with due consideration of the plans of the federal government.” The only due consideration necessary is consideration for the federal government, which our President is also now supporting wearing masks. And finally, with respect to specific actions the Governor can take, 10-14-3-11(b)(3) grants the Governor clear ability to “Take any action and give any direction to state and local law enforcement officers and agencies as may be reasonable and necessary for securing compliance with this chapter and with any orders, rules, and regulations made under this chapter.”
Governor Eric Holcomb can give any direction to law enforcement necessary to secure your compliance with any orders, rules, and regulations he issues, according to Indiana Law, section 10-14-3-11.
To put a bow on it, we should note that the whole “B misdemeanor” thing comes about as a result of not Governor Holcomb’s Executive Order, but rather the text of Indiana Law which was created by the Legislature. 10-14-3-34 states that “A person who knowingly, intentionally, or recklessly violates this chapter commits a Class B misdemeanor.” Violation of Holcomb’s mask direction, and technically any violation of any component of his Executive Orders issued in compliance with 10-14-3, is a Class B Misdemeanor because Indiana’s Legislature made a law that says so. Call your Legislator if you disagree.
Having summarized Executive Order 20-37, established Holcomb’s mask requirement precedents, and explained the basic functionality of Indiana’s Emergency Management and Disaster Law, 10-14-3, we can now apply what we have learned to Attorney General Hill’s Opinion on the matter.
In his official opinion, Attorney General Hill correctly stated that the Emergency Management and Disaster Law, Indiana Code 10-14-3, “does not provide specifically the authority to the governor to enact a mask mandate.” Because of course it does not provide that specific authority. Instead, Indiana Code 10-14-3-11 (b)(2) grants the Governor a practically open-ended ability to “Make, amend, and rescind the necessary orders, rules, and regulations to carry out this chapter” . It would be impractical for the Indiana Legislature to specifically list all conceivable orders, rules, and regulations a hypothetical governor might need to combat a hypothetical emergency.
This, of course, is the problem with emergency powers. They need to be open-ended and vague to compliment the open-ended and vague nature of reality. Yet allowing such open-ended and vague powers can lead to abuse, however that may be defined at particular times. It is not blameworthy for a Governor to do what the law allows him to do. The blame, as Attorney General Hill correctly states, lays with the Indiana Legislature: “The General Assembly has not sufficiently articulated standards to guide the governor in the exercise of emergency powers under EMDL, including what acts may be subject to a criminal penalty, and when the emergency ends.” Instead of providing clear standards, 10-14-3-11(b)(2) basically says, “the Governor has the ability to fix the problem, as defined by the Governor.”
This is the point at which the Attorney General stops saying correct things, and completely descends into nonsense.
Curtis Hill writes, “By declaring violations of his executive orders a class B misdemeanor, the governor has effectively exercised legislative authority. That is, he has taken conduct that has not been specifically criminalized by the General Assembly and declared it as criminal.”
Let us be crystal clear on this point: Governor Holcomb did not declare violations of Executive Order 20-37 to be class B misdemeanors. As we learned above, the Legislature made a law that the governor is following. The law has a check and balance too, the Legislature can end the emergency by a concurrent resolution. However, the Legislature in its wisdom forgot that it only works part time and that the only one who can call special sessions is . . you guessed it, the governor. This is where Hill’s plea to call a special session to consult would be wise. Having a check and balance which can only really be used 3 or 4 months out of the year while we have emergencies year round was a gross oversight in drafting to say the least. I would urge the Governor in the spirit of checks and balances to convene a special session as well.
However for now, the governor of Indiana issued an Executive Order containing the directive that “every individual within the State of Indiana shall wear a face covering over their nose and mouth” in compliance with his ability to “make, amend, and rescind the necessary orders, rules, and regulations” to combat an Emergency, from 10-14-3. Folks found in violation of the directive can be charged with a Class-B misdemeanor as a result of Indiana Code 10-14-3-34.
And if we did not want this to happen, then the Indiana Legislature should have drafted better laws.
And now further compounding things is declarations from Sheriffs and other law enforcement officials that they will not uphold this duly enacted law despite the oaths they swore to do just that. Refusal to uphold our laws is a very slippery slope, especially when done simply to follow popular opinion instead of the rule of law. I fear that this is just the latest example of the threads of our Republic being torn away.
If you are interested, you can read more at the links below.
Thank you for taking the time to read this blog. I hope it was helpful. Feel free to use this when trying to discuss with trolls online.
Stay safe. Wash your hands. Wear a mask. And as the Ft Wayne Zoo notes, Stay one crocodile apart.