UMaine law professor says Gov. Mills' mask mandate IS constitutional

Published: Jul. 9, 2020 at 6:15 PM EDT
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Is it constitutional for the governor to mandate that individuals wear masks?

According to a law professor at the University of is.

Dmitry Bam specializes in constitutional law.

He says it's unlikely a court would find it unconstitutional to require citizens to wear face coverings.

Early case law shows the Supreme Court had suggested that during a pandemic, the courts would be deferential to the legislature to try to protect the people, according to Bam.

He says it's a balancing act for courts, but protecting public interest outweighs an individual liberty.

"There may be that freedom that exists and the government has to have a fairly strong justification before it can infringe on that freedom. But, it's hard to think of a stronger justification, a more compelling justification than protecting people from dying. So, while we think of these rights as absolute and in some ways they're often times phrased as absolute rights in the constitution, once you look at the way the court approaches them, they're not really absolute rights. They are all subject to a kind of a balancing analysis where you compare the strength of the liberty interest with the strength of the government's justification, and I think in this case, when you do that balancing as to the mask, the justification will probably outweigh the interest in not wearing masks,." says Bam.

Governor Mills issued an executive order this week requiring several different businesses in certain counties and cities to enforce the wearing of face coverings.

What kind of consequences could be in place for defying this order is another question.

The Maine Department of Economic Development has created a form on its website for reporting violators of the face-covering mandate.

According to the website, the information can be made public, including the person who reported the violation.

TV5 reached out to the DECD for comment on enforcement of these violations.

They say quote...

"While the DECD developed the portal for reporting, we are not a licensing agency and do not have enforcement authority.

When a report is submitted through the portal, it is distributed to the appropriate department of state government that has licensing oversight jurisdiction."

The Mills Administration says it will pursue an educational approach first and seek voluntary compliance.

However, they do say if a business purposefully and repeatedly disobeys the order, they risk losing whatever state license allows them to operate.

When individuals don't follow the rules, they may face penalties, fines, or jail time.

Bam says, "I think for all of us, there's this internal gut reflex that says, 'No that can't be right, they can't force us to do it.' But, this is an unusual time and in unusual times there's maybe an expanded scope to government powers."

Maine DECD Full Statement:

While the Department of Economic and Community Development developed the portal for reporting, we are not a licensing agency and do not have enforcement authority. When a report is submitted through the Department’s portal, it is distributed to the appropriate department of state government that has licensing oversight jurisdiction.

For example, if someone reports that a local restaurant may not be in compliance, the report is distributed to the Department of Health and Human Services’ Health Inspection Program (HIP) as well as the Department of Administrative and Financial Affairs’ Bureau of Alcoholic Beverages and Lottery Operations (BABLO). HIP has jurisdiction over an establishment’s health licenses while BABLO has jurisdiction over an establishment’s liquor license, if applicable. In coordination, they investigate the complaint, offer to work with the business owner to ensure compliance, and determine whether enforcement actions are warranted. Similarly, if a report of non-compliance is made about a business with a license from Maine’s Department of Professional and Financial Regulation, such as a hair salon, for example, then that Department will examine it further.

Additionally, the Administration is also working closely with municipalities across the state as part of the Keep Maine Healthy Plan to have local health or code enforcement officers who can follow-up on reports and provide appropriate education.

The Administration always pursues an educational approach first, assuming that potential violations are not done purposefully, and seeks voluntary compliance. However, if a business purposefully and repeatedly does not appropriate health and safety protocols, they risk losing whatever State license allows them to operate in the State of Maine. They also risk other penalties as described in the Governor’s Orders. When individuals don’t follow the rules, they may face penalties, fines, and jail time.

Throughout this process, we are eager to work collaboratively with businesses and individuals to share a better understanding of the protocols to help ensure continued public health and safety during this crisis.

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