Law professor: Virginia mask mandate is constitutional

Local Coronavirus Coverage

(WJHL) – Starting May 29th, Virginians must wear face coverings in an array of public places. This is according to an executive order from Governor Ralph Northam requiring anyone 10 years and older to wear masks while in public and in close proximity to others. The mandate applies to places like salons, restaurants, stores, public transportation, government buildings, and anywhere in Virginia where people can gather in groups.

The Governor issued some exemptions for mask-wearing, including eating, drinking, and exercising. Also exempt are those who have trouble breathing, cannot remove a mask without help, or have health conditions that prohibit them from wearing one.

Northam said police will not be enforcing the mandate.

“We’re going to enforce it through the Virginia Department of Health rather than through law enforcement, sheriffs, police officers, that type of thing,” Northam said on Tuesday.

Constitutional scholar Stewart Harris told News Channel 11 he believes the governor does have the authority to mandate mask-wearing.

“A lot would depend on the actual wording of the Virginia Constitution and of the Virginia public health laws,” said Harris. “So there may be some issue there. But as a pure issue of constitutional law, I think that any governor, pursuant of the police power, should be able to mandate the wearing of masks.”

Harris is a law professor at Lincoln Memorial University. He said a 1905 case that went to the Supreme Court during the early era of smallpox vaccinations, Jacobson v Massachusetts, was precedent-setting with regard to the police powers invested in state governments.

The plaintiff argued that he should not be compelled to be vaccinated against smallpox. The Supreme Court found in favor of the state, laying a foundational “framework for the protection of public welfare over individual liberties … as granted by the U.S. Constitution” according to the Pace Law Library’s summary.

Ultimately, the landmark case subordinated liberty “to the welfare of the general public, as well as the collective good of the nation,” the Pace summary noted. “Thus liberty, in relation to public health, may be subordinate to the power of the state.” The decision relied upon the state police power enumerated in the U.S. Constitution’s 10th Amendment.

“And the Supreme Court basically said the State has the power, effectively to strap you down and stick a needle in your arm, and make you get vaccinated,” said Harris. “Which quite frankly is far more intrusive than putting you under quarantine. And certainly much, much more intrusive than mandating you wear a mask when you’re out in public.”

Breanne Forbes-Hubbard with the Mount Rogers Health District said Tuesday morning that the district would continue to advise wearing face coverings as they have been for weeks.

“It is a best practice in case you or someone you come into contact with does have COVID, and doesn’t have symptoms yet, or thinks its allergies or something,” said Forbes-Hubbard.

Many local business owners are already wearing masks while at work. Bill Testerman and his family own Blakley Mitchell Clothing Company, with stores in both Kingsport, Tennessee, and Bristol, Virginia. Each store has different reopening guidelines depending on the state.

“If there’s a full requirement to wear a mask for us and the customers, we will be of course glad to follow the guidelines,” said Testerman. “It’s a little burden, but it’s a burden we need to take care of.”

Continuing coverage of the COVID-19 coronavirus pandemic.

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