Governor Mills has issued yet another executive order aimed at “strengthening the use of face coverings,” this time by commanding Maine businesses to enforce the public face mask requirement, in the absence of the State's ability to do so itself. Ever since the order was issued, I have received a new wave of the same question: is that even legal? Well, maybe, maybe not, but most likely yes.
First, I'll briefly address what I hear a lot of people pointing out. Yes, it is correct that executive orders are not an act of the legislature and are in fact unilateral acts of the executive. Yes, the declaration of an emergency that authorizes the use of emergency powers including the expansion of the scope of executive orders is also a unilateral act of the executive. No, absent a ruling by the courts or action taken by the legislature, there is not currently a method put in place to pull the plug on these powers without the Governor's say so. Yes, I take issue with the lack of a safety mechanism here. As everything stands now, however, the Governor's ability to declare an emergency and use emergency powers were in fact granted by the legislature and barring some future court ruling to the contrary are legal. This was discussed previously, here.
Speaking of the courts, unless you have been living under a rock for the past couple of months, you have probably heard by now that a group of business owners have sued the Governor in federal court. Those businesses are alleging that they have been harmed by the restrictions set out by her executive orders (particularly when businesses in rural counties were not allowed to open) and that the executive order by which they were harmed consist of unconstitutional overreach of her the Governor's powers. Personally, I cannot wait to see how that one shakes out, but I do not think that it is likely to succeed. Similar actions across the country have repeatedly come up short.
While the most recent order is a new beast entirely, in that it essentially deputizes private businesses to carry out the Governor's will and then threatens to destroy them if they refuse, it is still likely to be held to the very same standard of review as all other Constitutional challenges that have been raised thus far. Unfortunately for the Plaintiffs, that standard of review is likely to be the rational basis test. Rational basis is a standard of review used by the Courts when analyzing the Constitutionality of government actions that do not involve fundamental rights or “protected classes” like gender or race.
Typically, the rational basis test sounds the death knell for just about every Constitutional challenge it is applied to. The test asks two questions. First, the Court must ask if the government action in question is tied to a legitimate governmental objective. Second, the action being scrutinized must have a minimally rational relationship to pursuing that legitimate objective. In other words, the action being taken by the government to achieve the legitimate objective cannot be arbitrary and irrational.
It is the reality that almost every government action will pass this test. In our present circumstances, the goal of the government action is to protect the public health. I feel confident in saying that this will always be upheld as a legitimate governmental interest. Where there is real room to argue, however, is the rational relationship to this or any other order to the goal of public health. Here is where attorneys must dig into the data and argue that the Governor's order are not actually accomplishing the stated goals. In the context of the COVID-19 outbreak in Maine, there has been much debate over the effectiveness of masks, the ability for restaurants to operate while maintaining social distancing and other precautions, and the sometimes inconsistent determinations regarding who and what businesses may continue to operate as well as where and when they may operate.
The reality remains however, that the rational basis test is such a low standard that it virtually operates more like a stamp of approval for government action than it does as a check on government action. Therefore there is a strong likelihood that the actions currently pending in federal court will ultimately fail, and the executive orders will remain in effect until either the Governor voluntarily lays down her emergency powers or the Legislature decides to act and vote to revoke them. Whenever that will be.