Rebekah MillardIn Oregon, Gov. Kate Brown’s emergency executive order for dealing with COVID-19 morphed into a statewide mask mandate written by the State Department of Health and enforced by the Occupational Safety and Health Authority (OSHA).
For individuals who cannot wear a facemask — a population that includes the three plaintiffs in an ongoing Freedom Foundation lawsuit against the state — the mask mandate has unleashed unimaginable hardships. They cannot enter places of public accommodation such as grocery stores and restaurants. They cannot walk around in public. Their ability to function in society has been destroyed.
Even when businesses give lip service to the idea of accommodation, other patrons feel empowered by the state order to harass and shame those who cannot wear a mask because of a disability. See Shannan’s story.
This week, the Freedom Foundation filed a brief with the Oregon Court of Appeals in the case Mooney v. Oregon, arguing that the mask mandate is invalid. Oregon’s mask mandate must be struck down because the necessary legal procedures have not been followed.
First, the Oregon Health Authority failed to comply with the law when it issued the mask mandate — it skipped all the necessary procedures for putting forward a new rule.
For example, when created on June 30, the mandate did not contain any notice or statement of statutory authority, nor did it list the waiver or rescission of any other state, local or constitutional rules or laws.
There were no other processes, notices, supporting documentation or written documentation authorizing or the mandate — a direct violation of ORS chapter 183, proving the director did not comply with the legal requirements of ORS chapter 183 in any form or fashion.
Second, the mask mandate violates Oregon’s Constitution because it does not respect the doctrine of separation of powers. Under a democratic form of government such as Oregon’s, only the state legislature (or the people) can pass or repeal laws.
The governor cannot give legislative power to a State agency such as OHA. Kate Brown’s executive order did not exempt OHA from its obligation to follow rulemaking procedures, and even if the it had exempted the agency from following the law, OHA would still be statutorily obligated to comply with ORS chapter 183, which it did not do.
Third, the mask mandate violates the freedom of speech guaranteed by both the First Amendment to the United States Constitution and the speech protections of the Oregon constitution.
Speech is threatened both by forcing people into expressive conduct (wearing a mask), and by forcing those who cannot wear a mask to explain their reason for not doing so, often forcing them to talk about private medical conditions upon which the government has no right to compel speech.
Fourth, the mask mandate is preempted by federal law, the American’s with Disabilities Act, because the mandate does not allow for adequate accommodation for disabled individuals.
Where a state law provides less protection to a disabled person than the Federal ADA, the Federal ADA expressly preempts that state law. The ADA prohibits private entities from discriminating against individuals with disabilities who are entitled to the “full and equal enjoyment of the goods, services, facilities, advantages or accommodations of any place of public accommodation.” 42 USC § 1282(a).
OHA’s website makes clear that businesses must tell people they “may not enter without a mask, face covering or face shield.” No attempt is made to allow full and equal enjoyment for disabled persons who cannot wear a mask or face shield.
Finally, the mask mandate does not follow the governor’s emergency executive order. Since the mask mandate clearly exceeds the authority the governor delegated to OHA, the mask mandate is invalid.
Despite much misinformation on the topic, none of Gov. Brown’s executive orders actually contain a statewide mandate requiring face coverings. None of the orders direct or authorize OHA to mandate face coverings statewide.
At most, the executive orders state that that people should adhere to OHA guidance on face coverings. Thus, the only authority OHA has, even under the governor’s executive orders, is to tell people that they should wear face masks. It has no authority to say people must wear face coverings.
In bringing this lawsuit, it is Freedom Foundation’s hope that the rule of law will be upheld, that the form of democratic government our constitution set up will be affirmed, and the individual freedoms Oregonians are guaranteed will be protected.