Persons, Masks, and the Law
Let's take a minute to reflect while we have time to breathe
One of the themes of this newsletter is addressing our deepest differences. And one our deepest differences in the past few years has been our views about the propriety, utility, and legality of wearing masks during the pandemic.
In the News
I live in St. Louis, and for most of 2021 and the beginning of 2022, our city and county required people to wear masks indoors. Other municipalities and public school districts around the state also issued mask mandates. These orders were challenged by the state’s attorney general, Eric Schmitt, who sued thirty-six Missouri school districts and several local municipalities seeking to enforce mandates. (Schmitt is back in the news this week having just won the Republican primary for Missouri’s open Senate seat.)
Some institutional leaders told me they believed the city and county mask mandates were in “legal limbo” once Schmitt challenged them in court. This represents basic confusion about the law. The state attorney general is not “higher up” than a city or county policymaker; he occupies a different sphere of authority. The attorney general can file a legal challenge to a local policy, but he has no authority to invalidate that policy. These distinctions were blurred during much of the pandemic.
Some schools and churches in our region established formal or informal policies that contravened the mandates. It would have been one thing for those institutions to have engaged in civil disobedience, which would have required “a public, non-violent and conscientious breach of law undertaken with the aim of bringing about a change in laws or government policies.” But none of the institutions I observed argued that the mandates were unjust or that conscience required disobeying them. They simply ignored the laws and set their own contravening policies.
In my Head
The mask mandates in the St. Louis region were not enforced with the threat of criminal or civil sanctions. Perhaps that was a political calculation by duly appointed authorities that they didn’t want police with guns and handcuffs on the doorsteps of schools and churches. Many laws, such as those prohibiting recreational marijuana use and driving a few miles over the speed limit, are generally unenforced. That doesn’t make them not law.
As a parent and a lawyer, I want my kids to understand the rights and responsibilities that come with the privilege of living in a democratic society. That includes knowing about the rule of law, which mitigates, however imperfectly, a great deal of suffering and injustice. I tell my kids they don’t have to like or endorse the law of the land, but absent a compelling reason to engage in civil disobedience, they do need to follow it.
I didn’t like these mandates, and I hated wearing masks. And my frustration was compounded by the policy decisions of our local officials. Our county mandate required only cloth masks, which were largely ineffective in stopping the Omicron variant of COVID-19. The mandate exempted eating and drinking in restaurants—a carveout based on business and economic interests that made no medical or scientific sense at the height of the pandemic. Conversely, by the spring of 2022, the lack of exemptions for some classroom settings seemed outweighed by the costs to learning. Having taught while masked for two semesters, I can attest to these costs, which were even more significant for younger students. So as a policy matter, people could rightly be frustrated by these mandates.
But this is how law works: You lobby for exemptions to rules you don’t think should apply to you, and if you don’t like what you get, you vote in other people. If you think the law exceeds proper authority or violates your rights, you sue. In extreme circumstances, you engage in civil disobedience. But you don’t just ignore the law or conclude that it’s not really law because you don’t like the underlying policy or how the exemptions turned out. Following the laws we like is easy; the true test of our democratic experiment is following the laws we don’t like.
In the World
I took the title of this post from John Noonan’s classic book, Persons and Masks of the Law. The book predates the COVID-19 pandemic, but it offers some relevant insights. Judge Noonan suggests that the “central problem” of the legal enterprise is “the relation of love to power.” Lawyers need to be “formed less as social engineers” and more by commitments to people and communities.
The past two years have seen too many social engineers and a dearth of communities. I am disappointed that some of my neighbors chose to ignore public health laws at the height of the COVID-19 pandemic. But I am also troubled by many of the laws issued by federal, state, and local officials during the pandemic. Laws that too often neglected the human beings on the other side of them, too quickly claimed “science” in service of what could only be policy choices, and too stubbornly resisted calls to reexamine their premises.
There are few clean hands among the politicians and policymakers who have stumbled their way through this pandemic. And we are bound to repeat these mistakes in the next public health crisis, or even the next variant of this pandemic, unless we work now toward a better understanding of the relation of love to power and the need for greater trust in one another. That means following the laws, but it also means wisdom in making those laws.
This is a subject I've been thinking a lot about, so forgive the length of this comment. I also am not sure I'm entirely in agreement with you, but I think it raises interesting and important philosophical questions about the rule of law.
Here in New York, there is, as a technical matter, a mandate requiring passengers to wear masks on mass transit. Indeed, there are billboards plastered on the subway instructing people to do so. (This has some odd results. According to the law as written, you're required to wear a mask at LaGuardia, which is operated by the Port Authority, but you're free to take it off as soon as you board the aircraft. In Penn Station, if you hop on board the Long Island Railroad, you're aboard an MTA train and a mask is required; if instead you get on a NJ Transit train on the other side of the platform, no mask is required. And even weirder, a trip from Penn Station to Newark Airport aboard NJ Transit does not require a mask; take the PATH train instead and a mask is required.)
In light of these confusing and contradictory rules (some of which—such as the mask mandate still in effect at LaGuardia and JFK, but not at Newark—are not at all clear to travelers), it is no small wonder, then, that the mandate is widely ignored by passengers, transit workers, and law enforcement officers alike. There has been no attempt at enforcement of any kind in 2022, meaning the mask mandate is enforced even less than speeding or jaywalking. It is, for all intents and purposes, a recommendation dressed up as a legal requirement.
What I find ironic about this is that the city itself has taken the position that "it's not illegal if it's not enforced," at least in some areas. Another billboard that you'll commonly see on the subway is a placard that says, "You must be 21 or older to legally use cannabis." Of course, cannabis is a Schedule I drug under the Controlled Substances Act and, therefore, under the Supremacy Clause, not legal at any age for any reason, regardless of what New York state law has to say about the matter. That said, the federal government no longer enforces the prohibition against marijuana, meaning we are in a regime where marijuana is, as a de facto matter, perfectly legal.
When a law is not enforced (particularly when its non-enforcement is, in the case of New York's transit mask mandate or the federal government's marijuana prohibition), that forms a gray area in the law. Is the law simply those words printed on the page? Or is it also the government's ability and willingness to enforce those words as well?
This gray area is not a good thing, which is why both New York's transit mask mandate and the federal prohibition on marijuana are bad laws. In the words of Stephen Carter, we should never "argue for invoking the power of law except in a cause for which [we] are willing to kill." The city and state government in New York has recognized that it is not willing to use violence to enforce its transit mask mandate; accordingly, it should get rid of the law. To do otherwise continually undermines the rule of law, because a society in which people can choose whether or not to follow the law is inherently a society in which laws are no better than recommendations. Such a society is not a law-abiding society.
Unfortunately, it is precisely because of widespread non-compliance that the government has (I believe) chosen to simply do nothing. It is easier to simply keep the law on the books and not enforce it, thereby ensuring that if it ever felt the need to enforce it again (e.g., a particularly deadly new variant arrives), it could do so without the political cost of re-implementing a widely despised mandate.
Of course, the non-compliance has greater costs than forcing the particularly scrupulous to wear a mask on the A train. Individuals may feel free to disregard the law in the same way that individuals speed, jaywalk, and park in front of fire hydrants. But institutions tend to be more scrupulous about following the law, even if it won't be enforced (perhaps out of a repetitional concern). For example, there remains in place in NYC a prohibition on employing anyone (other than professional athletes) who is not vaccinated. The law is written so broadly, though, that an unvaccinated congregant is unable to serve as an usher or greeter at church (though they are welcome to attend, unmasked). Again, inertia seems to have prevented the government from removing this law, even though the mayor has chosen not to enforce it.
There is a slightly different, albeit related, question about how to approach a law that is enforced. Suppose a citizen is perfectly fine with the consequences of breaking the law. What then? (To be clear, I'm not thinking of malum in se offenses, but malum prohibitum offenses, recognizing that the distinction between the two isn't always clear.) For example, everyone is legally required to get health insurance under the ACA—except that there's no penalty anymore. Indeed, the legislators in the TCJA set the penalty to $0 precisely to remove (as a de facto matter) the legal requirement, even though the law remains on the books. Must I still get insurance? And when there was a penalty, what of the people who decided the penalty was worth it? Here's another example. In New York City, if I don't move my car for street cleaning each week, I get a $60 ticket. But parking the car in a lot where I don't have to move it will cost me upwards of $400 per month, making the $60 weekly ticket cheaper than parking it in the lot. If an offense is a malum prohibitum offense and the cost of the offense is a cost I'm willing to bear, is it still a law I ought to follow?
On the laws that aren't enforced, though, I think this is a dangerous tendency in our society—it is the tendency for government to simply decline to use its power to enforce the law when confronted with a law that it no longer believes is worth the cost of enforcing, either because the law itself is unjust or its enforcement is simply overly burdensome and government resources are better spent elsewhere. (One can think of a host of examples, from enforcement of immigration laws to abortion laws to Covid-era pandemic laws.) In my view, the better solution—the one that views rule of law as a social good—would be to continue to enforce the law and advocate for its removal.
But as a citizen, there is a slightly different question—a question to which I don't have a good answer. Is it my job to obey the law as it is written (i.e., the position that reflects the legislative text), or is it to obey the law as it is enforced (i.e., the position that reflects the view of the government)? Which position better reflects being "subject to the governing authorities"?
It's interesting that this topic has triggered more passionate comments than any of the previous. I'm a bit intimidated by the learned (as evidenced in their vocabulary!) comments by Jon and Dan, but, hey, I'll comment anyway. What I've been thinking a lot about recently is based on observations and experience here in the NJ shore town where we spend most of our summers. And what I've observed is municipal ordinances galore that are written with good reason, but generally ignored. For example, there's a lake near us which attracts water fowl--ducks and geese; there are signs posted around that body of water forbidding feeding of the water fowl. There's a board walk next to the beach; there are signs forbidding the riding of bikes during most hours of the day (it's permitted between 2 a.m. and 10 a.m.!). Both of these are violated on an ongoing basis.
As Jon and Dan have both suggested in their thoughtful comments, the proliferation of still more unenforced (and often unenforceable!) regulations--whatever the governing authority behind them--tends to undermine respect for the law and, really, respect for one another in our communities. As I've reflected on these (and other examples) at root I realize I'm less bothered by the illegality of the violations of these prohibitions than I am by the general lack of concern for one's fellow citizens; in short, the increasing lack of common civility. The "nobody tells me what to do!" attitude.
Thanks again for a thoughtful blog, John.