North Carolina Governor’s Constitutionally Questionable Executive Order (# 180 of November 23, 2020) on Face Coverings (masks) Provides for Exceptions

By Brian K. Lutes, November 26, 2020

This is a hot button topic and I have absolutely no desire to stir up an argument on the efficacy of face coverings or whether or not they should be worn as everyone can make those decisions for themselves after reading the opinions of medical experts on both sides of the issues.

While it is clear that the North Carolina Emergency Management Act (NCGS 166A et seq.) allows the Governor to Declare Emergencies, which he did on March 10, 2020 for the Corona Virus via Executive Order 116, and take certain measures to address them, his authority to force ostensibly healthy people who show no signs of being ill or proof that they’ve tested positive for a contagious virus, to wear face coverings under the threat of being arrested for not doing so is akin to “Prior Restraint” which is a situation where the government, be it state or federal, or an agency thereof, asks a court for an order preventing someone from doing something that the government believes will cause public harm they have have made known they intend to do before they actually do it. Our courts have held that such requests from the government are subject to strict scrutiny and bear a heavy presumption against constitutional validity (372 U.S. 58, 70 (1963)) and are rarely upheld (New York Times Co. v. United States, 403 U.S. 713 (1971)); (Nebraska Press Assn. v. Stuart, 427 U.S. 539, 558 (1976)); Tribe, American Constitutional Law 12-34 (3d ed. 2000).

Under the Separation of Powers Doctrine enshrined in our Constitutional system, which our Supreme Court has held to be a “bulwark against tyranny and looks to prevent any person or group from imposing its unchecked will” (U.S. v. Brown, 381 U.S. 437, 443 (1965)), a Governor cannot “make a law”.  Only the legislature can make a law and our Supreme Court has held that even they do not have the power to pass laws that override the Constitution (Marbury v. Madison, 5 U.S. 137 (1803)).

The Governor points to the North Carolina Emergency Management Act (NCGS 166a et seq.) as his authority  to force individuals to wear face coverings, but we must consider that it has been held by our courts that the Legislative branch “cannot delegate or sign over its authority to any individual, corporation, or foreign nation” (16th Corpus Juris Secundum, 141).

However, for the purposes of this writing I’ll proceed as if there are no questions about the Constitutionality of the Governor’s Order. Many people who wear and believe in the efficacy of face coverings get absolutely incensed when they encounter others who do not wear face coverings and believe that they are uncaring or indifferent to the health & safety of others. However, this is usually not true as many people who do not wear face coverings simply cannot wear them due to medical or behavioral issues and the Governor’s Order provides exceptions for these situations.

The enforcement part of the Governor’s most recent Executive Order pertaining to the Corona Virus (#180 of November 23, 2020) is found in Sub-section I (D) “Creating an Enforceable Legal Duty for Individuals, as Well as Businesses, to Follow Face Covering Requirements”.

Section 2.7 of the above referenced Sub-Section (which actually amends section 2.7 of Executive Order 169) “Enforcement of Face Covering Requirements” states:

“If a person does not wear a Face Covering in a situation where a Face Covering is required under this Executive Order, AND IF AN EXCEPTION TO THE FACE COVERING REQUIREMENTS DOES NOT APPLY:

a.) Law enforcement officers may (a choice to act, not a requirement (The Peoples’s Law Dictionary, retrieved November 26, 2020)) cite the people who failed to wear Face Coverings as required by Executive Order; and/or

b.) Law enforcement officers may cite a business or organization that failed to enforce the requirement to wear Face Coverings.

Further, if a business or organization does not allow entry to a worker or guest because the person refuses to wear a Face Covering, and if that worker or guest enters the premises and refuses to leave the premises, law enforcement personnel may enforce the trespassing laws and any other laws that the worker or guest may violate”

To me, the issue is that the Governor, in Section 2.7 of Executive Order 180, states that individuals can be cited for not wearing a face covering only if an exception to the requirement does not apply to the individual, but the Executive Order does not list what the exceptions to the requirement are.

To find the exceptions to the requirement that individuals wear face coverings you have to read the Frequently Asked Questions (FAQ) brief issued for Executive Order 180 which states in paragraph 5 of page 4:

Are there any exceptions to the face covering requirement?”

“Yes, there are certain exceptions to the face covering requirements as spelled out in Executive Order 169, Section 2.4”

 So we go to Executive Order 169 (issued on September 30, 2020) titled: “Restrictions to Protect Lives During the Covid-19 Pandemic: Phase 3”

And find in Section 2.4, titled “EXCEPTIONS”,14 exceptions (listed a-k) to the requirement that individuals wear face coverings.

Section 2.4 “Exceptions” states:

This Executive Order does not require Face Coverings for-and a Face Covering does not need to be worn by-a worker or Guest who:

a. Should not wear a Face Covering due to any medical or behavioral condition or disability (including, but not limited to, any person who has trouble breathing, or is unconscious or incapacitated, or is otherwise unable to put on or remove the Face Covering without assistance);

b. Is under five (5) years of age;

c. Is actively eating or drinking;

d. Is strenuously exercising;

e. Is seeking to communicate with someone who is hearing-impaired in a way that requires the mouth to be visible;

f. Is giving a speech for a broadcast or to an audience·

g. Is working at home or is in a personal vehicle;

h. Is temporarily removing his or her Face Covering to secure government or medical services or for identification purposes;

I. Would be at risk from wearing a Face Covering at work, as determined by local, state, or federal regulations or workplace safety guidelines;

J. Has found that his or her Face Covering is impeding visibility to operate equipment or a vehicle; or

k. Is a child whose parent, guardian, or responsible person has been unable to place the Face Covering safely on the child’s face.

Anyone who declines to wear a Face Covering for these reasons should not be required to produce documentation or any other proof of a condition.

Children under two (2) years of age should not wear a Face Covering.”

Section 2.5 of Executive Order 169 titled “Application of Exceptions” , states:

Under this Executive Order, all North Carolinians will be on the honor system about whether or not there is a reason why they cannot wear a Face Covering. Everyone in this state is asked to tell the truth and – if they are healthy and able to wear a mask – to wear a Face Covering so that they do not put other people at risk of serious illness and death.”

Section 2.6 of Executive Order 169 titled “How Businesses May Accommodate Exceptions”, states:

If a Guest states that an exception applies, a business may choose to offer curbside service, provide home delivery, or use some other reasonable measure to deliver its goods or services.

The question of whether or not a business can legally deny entry to someone who is not wearing a face covering due to one or more of the exceptions to the requirement they be worn is complicated, but my research leads me to believe they probably legally can (but they are not required to do so) even considering the Americans with Disabilities Act, as long as they offer some other reasonable means such as delivery or curbside pickup to obtain the goods or services they offer. But under no circumstances can a business say to someone not wearing a face covering due to a medical exception: “You’re not wearing a face covering so we’re not going to serve you in any way” as that is not permissible under the Americans with Disabilities Act.

The main point I’m trying to make is that, despite the repeated droning of the media and Governor Cooper himself, again, assuming the Executive Orders are in accord with both the North Carolina and US Constitutions (which I don’t believe they are) no one can be cited or arrested under the Governor’s Order(s) for not wearing a face covering in any situation if just one of the 14 exceptions to the requirement that face coverings be worn listed in Section 2.4 of Executive Order 169 applies to them.

And, if anyone claims they are unable to wear a face covering for a medical or behavioral reason they cannot be asked or forced to produce documentation or proof of that reason by anyone.

We must always remember that our Constitution is the supreme law of the land with which all statutes must comply and that “The general rule is that an unconstitutional statute, whether federal or state, though having the form and name of law, is in reality no law, but is wholly void, and ineffective for any purpose, since unconstitutionality dates from the time of its enactment, and not merely from the date of the decision so branding it. No one is bound to to obey an unconstitutional law and no courts are bound to enforce it. (16th American Jurisprudence, 256, 2nd ed.)

“If an acquaintance with the Constitution and laws of our country be requisite to preserve the blessings of freedom to the people, it necessarily follows that those who are to frame the laws or administer the government should possess a thorough knowledge of these subjects. For what can be more absurd than that a person wholly ignorant of the Constitution should presume to make laws thereto?

Or that one who neither understands the Constitution nor the law, should boldly adventure to administer the government.” (Blackstone’s Commentaries, Preface by St. George Tucker (1803))

Published in: on November 26, 2020 at 3:13 pm  Leave a Comment  

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