OK and OH are reversing requirements \ mandates to wear face masks amid violence & claims of constitutionality.

  • What exactly is the constitutionality argument?
  • Where do governors and local leaders gain their authority to issue a mask requirement?
  • Is the threat of violence against workers criminal?


"It became clear to me that that was just a bridge too far. People were not going to accept the government telling them what to do," he said on ABC's “This Week."

I feel that I do not understand the governing dynamics. From my view: a seemingly reasonable order is rebuffed with violence and is walked back by authorities. Any clarification is appreciated.

I do understand that there is a population segment does not like to be 'told what to do' and that they fiercely guard \ exercise constitutional rights and will protest any perceived erosion of said rights.

Apparently, the violence and enforcement of mask usage in a US pandemic extend back to the 1918 Pandemic in San Francisco. Maybe anyone that uses the word unprecedented to describe COVID-19 should read the history of the 1918 pandemic. describe COVID-19

1 Answer 1


Threats of violence are illegal. No law forces a government to engage in a discretionary act in the face of threats of violence, nor do laws prohibit such decisions. The choice to "make a law" (issue an order) is entirely political, and the threat of violence is one of the motivations behind some political acts.

Governments generally have enacted emergency powers laws that say what the governor / mayor / county executive may do in emergency situations. They are generally written to anticipate circumstances surrounding natural disasters, uprisings and invasions, and disease outbreaks, and empower the executive to issue whatever orders are deemed necessary for public health and safety. They can differ a lot in how specific they are.

There are a few rights that are expressly spelled out in the Bill of Rights (freedom of speech, right to bear arms, quartering soldiers etc.) which constitute a bright line that cannot be crossed. There is no explicit constitutional provision that protects your right to contract, but it was generally held that there are other rights that are implicit in the Constitution, or that follow from other provisions (until the court decided otherwise). Even though there is no express constitutional provision guaranteeing that you have the right to walk around in public peacefully minding your own business, this is generally held to be a fundamental right. The Supreme Court then may at some point identify a fundamental right, as they have done (the rights to marry, vote, procreate or use contraceptives...).

The government cannot infringe on fundamental rights unless they do so to achieve a compelling government interest (public health and safety is a good example), and then the question is whether an infringement is properly justified. For that to happen, the law has to be narrowly tailored to the purported purpose, and be the least restrictive way of achieving that end.

As for mandatory face masks, there is a potential equal protection argument related to the fact that it may be illegal to wear face masks in public. Some of the arguments set forth relate to the disproportionate impact upon the poor or the disabled (if they cannot wear a mask for compelling reason). It imposes an extreme burden on the poor and especially the homeless (I'm not one, and I cannot get a face mask in the store. "Order it on Amazon" isn't an answer for many people). So mandatory (public) masks significantly infringes the right of people to live (buy food), and does so unequally.

Whether or not such considerations are upheld to the highest courts remains to be seen.

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    @user6727 As the devil's advocate: all (including homeless) are compelled to wear clothing to buy food at the grocer: a mask made of cloth is far from overly burdensome. Recent rulings regarding MI's governor support authority to issue lockdowns and presumably prophylactic behaviors. Nice & thoughtful response.
    – gatorback
    May 4, 2020 at 16:25
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    My understanding is that courts have generally deferred to the executive branch(es) for responses to public health emergencies; by the time a case gets anywhere, the emergency is often over, leaving the case moot and the issue unresolved. May 4, 2020 at 16:49
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    @Devil, there's a reasonable probability that the state would make that argument. An ordinary Wild West bandana made from a found rag ought to count legally, unless an order is more specific. Also, I don't really expect this to be decided at SCOTUS, so this is more theoretical, unless this goes on for a few years.
    – user6726
    May 4, 2020 at 17:25

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