Masks Are Legal, Dummy | LegalEagle’s Real Law Review

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oh the dude whos sueing the white house

👍︎︎ 2 👤︎︎ u/stonks1234567890 📅︎︎ Nov 20 2020 🗫︎ replies
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- Thanks to Mack Weldon for keeping Legal Eagle in the air and helping me look fly. You hear it time and time again, when Americans are told they should wear a mask indoors. - [Man] I'll just put you on my 3000 follower Instagram feed, mostly locals. - Hi, everyone! I work for Costco and I'm asking this member to put on a mask because that is our company policy, so either wear the mask, or-- - And I'm not doing it 'cause I woke up in a free country. - A Dallas woman decided to throw a toddler style tantrum in a grocery store. - I don't give a (bleep)! - Not to be outdone by Dallas, a Fort Worth woman berated a store clerk. - I'm spreading more germs standing here, for God sakes! - Suddenly people have doctor's notes that prevent them from wearing masks, but the same medical conditions obviously don't stop them from screaming. - My doctor would not let me wear a mask! - And this California guy called the store manager the N word and had a meltdown over the manager wearing a mask. - [Man] This guy called me a (bleep). - So what? - A totally shameless woman wants to call the manager of a hospital because the hospital requires that all people wear masks. - [Woman] I'm at Saint Joseph's Hospital. They're telling me that if I don't wear a mask, they're not gonna assist me, they want me to leave. - And the people of Florida weren't going to be out Florida-ed by other states, so people in Florida challenged mask laws because only God can regulate breathing. - And they went to throw God's wonderful breathing system out the door. - I was born free, I will stay free. My rights come from God, not from you. - And some people have more practical reasons for not wearing masks. - I don't wear a mask for the same reason I don't wear underwear. Things gotta breathe. - Then there's the Florida man who just doesn't feel like wearing one, for reasons. - I just don't wanna be doing it. I dunno, somehow sitting in the oval office behind that beautiful resolute desk, the great resolute desk. - Half of all states now require people to wear masks in public spaces. Obviously, a lot of people are more than a little confused about what rights the constitution of the United States grants to its citizens and what powers the government has over its citizens. Do you have an unalienable right not to wear a face mask in public? Can businesses tell customers to wear masks and do those little cards talking about the Americans with disabilities act actually have any effect? (fanfare) Hey, Legal Eagles. It's time to think like a toddler. Nope, nope, it's time to think like a lawyer. - In the beginning, God formed man out of the earth and breathed his breath in him and he became a living soul. Where do you derive the authority to regulate human breathing? - Well, Florida woman, not everything that you don't like violates your constitutional rights. For example, we have freedom of expression, but there are some things that we simply cannot do, like create obscene materials involving children. We have freedom of assembly, but the government may regulate the time, place and manner of how we exercise that right, when they have a legitimate reason. In short, our constitution recognizes freedoms with limits. Under the 10th amendment, powers not delegated to the federal government are reserved to the states or to the people. This means that the federal government's power is not unlimited, so states and smaller units of government have the power to regulate certain conduct and as we've seen throughout this pandemic, the federal government has taken, let's say, a hands off approach to dealing with COVID. - With a federal government, we're not supposed to stand on street corners doing testing. They go to doctors, they go to hospitals, they go to the state. The state is a more localized government. You have 50 of them. - And as a result, most mask orders are coming from mayors and governors. Police powers are not unlimited, but in a pandemic, governments have much broader authority to impose regulations that protect the population from a virus that has serious implications for public health, but at the same time, citizens have rights that cannot be taken away by any particular laws and if a law appears to interfere with a constitutional right, those whose rights are affected can challenge that law in court. Constitutional rights include the freedom of speech, the freedom of religion, due process of law and equal protection under the law. So because mask laws are so contentious, let's start with making an analogy. Let's talk about government bans on public smoking. Now, if there isn't a specific right, then it's highly likely that the government can outlaw a certain conduct. Take, for instance, bans on smoking. Smoking is basically like wearing a mask, except it's the complete opposite. Obviously, the constitution says nothing about a right to smoke. For smoking to be a constitutional right, then it would have to fall under one of the other recognized constitutional rights. When governments started banning smoking in public places, smokers actually challenged those laws on two theories. One, that smoking is a personal liberty, protected by the due process clause of the constitution, or two, that the equal protection clause extends special protection to smokers as a group. Now, the due process clause of the constitution prohibits the government from depriving individuals of liberty, without what's called due process of law. This means that a legislative body must have an adequate justification for passing a law that affects someone's liberty. Smokers challenged the smoke-free workplace laws in court on the basis that the laws violated the due process clause. They alleged that the laws took away a smoker's liberty without adequate notice or reason, but the courts uniformly rejected this claim, since the smoke-free workplace acts didn't involve a fundamental liberty right, such as the right to privacy. The courts used what's known as the rational basis test to determine whether the government could regulate that particular conduct. You can think of it like a sliding scale. The more a law interferes with a fundamental right, the more scrutiny a court will have in interpreting that particular law and the more it just involves regular conduct, it doesn't involve a fundamental right, well, the less scrutiny and that's generally what the rational basis test is. Often cases are won and lost based on the particular test that is applied to that law and generally, if the court applies a rational basis test, that law is almost certainly going to be upheld. The rational basis test requires simply that a law must be rationally related to a legitimate government goal. This requirement sets a very low bar for the government. A law will be considered constitutional, so long as the law is not completely irrational or arbitrary. Basically, laws never fail this requirement. For smokers, this was very bad news. The government had ample scientific evidence that smoking causes health problems and secondhand smoke harms other people who are exposed to it and smoking wasn't even a contagious virus, spreading without warning, so at the end of the day, it was easy for courts to uphold smoking bans because there was a rational basis to connect the smoking bans to the legitimate public interest of helping public health. So with that background, let's talk about COVID-19 mask orders. With COVID-19, the CDC estimates that up to 35% of people infected have no symptoms, but are still contagious and since masks reduce the chance of infected people transmitting the respiratory droplets that contain the virus in enclosed spaces, mask orders are on pretty firm legal ground and let's look at California governor, Gavin Newsom's mask order, as an example. Governor Newsom ordered people in California to wear face coverings when they're in, quote, high risk situations, including inside of, or in line to enter any indoor public space, visiting a hospital or other health related building and waiting for, or riding on public transportation or ride sharing vehicle. Now, the California emergency services act is the source of the governor's power to make masks mandatory. The law gives the governor broad authority to respond to state emergencies, like the COVID-19 panic. The governor's authority to take public health measures was already approved, though, by the Supreme Court, at least temporarily. When churches challenged governor Newsom's temporary orders on large public gatherings, churches sued for an injunction barring enforcement of the order. The Supreme Court denied their motion for an emergency injunction. Chief Justice Roberts cautioned that courts shouldn't second guess emergency measures that local governments imposed for health and safety, especially, quote, while local officials are actively shaping their response to changing facts on the ground. Newsom's mask order relies on the same law and rationale. So what if people sue? - [Woman] Target, I'm not playing any more (bleep) games. This (bleep) is over. This (bleep) is all (bleep) over. No, uh-uh, no, why, why? You let everybody else do it! You let everybody else do it, why can't I do it? 'Cause I'm a blonde white woman? - [Man] I think we have enough here. - Okay. Listen, ma'am, just spin around, just put your phone down. - What? - Okay. - Oh my God. - I'm sorry. - Well, people like the woman in that video will certainly sue Newsom and other local authorities who issue a mandatory mask order. Representatives like Kentucky's Thomas Massie thinks that there's no way that any patriot would ever wear a mask or get vaccinated, which would actually be kind of funny, if it weren't so sad, because George Washington conducted the first government funded inoculation in American history, when he had the entire continental army vaccinated against smallpox. Although Representative Massie and others think that face mask orders are unprecedented lunacy that Americans have never ever put up with, how do I put this nicely? That is an a-historical interpretation. Face mask orders were common during the 1918, 1919 flu pandemic. They were enforced with citations and fines, much like authorities are proposing today. Some people were even jailed. During the influenza pandemic, there were even influenza courts, where people could contest their citations. Unfortunately, there aren't really any written decisions from that era. We do know that there were pockets of resistance to mask wearing, but the flu pandemic was deadlier than world war I, which was still raging at the time and most people saw wearing a mask as part of their civic duty. When people did challenge the citations, judges simply deferred to the government regarding masks and closures and that's basically what Chief Justice Roberts did. Even though the group of churches could cite to a specific fundamental freedom, in this case, religious freedom, that theoretically could have been curtailed or at least implicated in these laws, but the fact that we're in the middle of a pandemic really matters and there is one Supreme Court case that should probably control the outcome of all of these different mask lawsuits. In Jacobson versus Massachusetts, the court considered whether the city of Cambridge could make a smallpox vaccination mandatory. The person who sued the city alleged that the immunization violated the equal protection and due process clauses and violated the spirit of liberty embodied by the constitution, but the Supreme Court held that the city was well within its police power authority to mandate this immunization. Justice Harlan rejected the claim that each person is, quote, a law unto himself and could act with no consideration toward other people. Quote, "The Liberty secured by the constitution "of the United States to every person "within his jurisdiction does not import "an absolute right in each person to be, at all times "and in all circumstances, wholly freed from restraint." Since smallpox cases were prevalent in Cambridge and the disease was increasing, the government was justified in taking responsible measures to protect citizens from smallpox. Jacobson teaches us that for a lawsuit against mask orders to be successful, the litigants will need to show that there is no rational basis for the law, which is an incredibly uphill climb, because there's lots of evidence and arguments that mask orders have at least a rational basis to the legitimate aim of public safety. There are several strands of evidence supporting the efficacy of masks. Laboratory studies of respiratory droplets concluded that masks can block nearly all of the droplets. Epidemiological studies, like a recent one published in Health Affairs, have concluded that masks slow the COVID-19 growth rate. The study compared the COVID-19 growth rate before and after mask mandates in 15 States and the district of Columbia. It found that the mask mandates led to a slowdown in daily COVID-19 growth, which became more apparent over time and there's lots of other data out there that I could cite, but a quick Google search will probably turn them up. But so far we've just been talking about the states versus the federal government. COVID-19 has brought out a very interesting, if terrible legal issue as between governors and municipalities. What happens if governors and mayors actually disagree with each other about COVID-19 orders, or specifically, what happens when the mayors want mask orders and the governors say that there shouldn't be mask orders? The outcome of these conflicts depends on how much power the cities have under the Home Rule Doctrine. Home rule is the idea that municipalities and counties have autonomy to act with respect to their own affairs. 40 of the 50 States operate under Dillon's Rule, which means that municipalities only have specifically enumerated powers. In other words, the municipalities, like cities and counties, only have the power that the state governments actually bestow upon them. This is why Georgia governor, Brian Kemp, filed a lawsuit to stop Atlanta and 14 other Georgia cities from making masks mandatory. Kemp asked a judge to overturn Atlanta mayor, Keisha Lance Bottom's orders, that were more restrictive than his own, block her from issuing additional orders and instruct the city council not to ratify her actions and force her not to make any public statements claiming she has authority that exceeds Kemp's. Now so far, the Georgia mayors have vowed to defy Kemp's orders and fight his lawsuit, so that they can actually make masks mandatory, to stop the spread of COVID-19, but in Georgia, the home rule says that the city, whether it's the mayor or the city council, can only do the things that the state government, through the governor, allows them to do, so it's likely that they may lose those lawsuits. In contrast, a few states give municipality significantly greater police powers. In Alaska, which observes the minority rule, a home rule city, quote, may exercise all legislative powers, not prohibited by law or by charter. So instead of a city needing the power granted to them by the state government, the cities can do whatever they want, unless it's prohibited by the state government and Anchorage issued a mandatory mask rule in June and although the governor's office tried to limit the city's authority to mandate masks in state buildings, Alaska's legislature has not restricted Anchorage's authority regarding mandatory masks or exempt state owned buildings. This means that Anchorage's order will likely stand. So that's states versus cities, but by now you've probably seen a lot of people claiming that mask orders conflict with the Americans with disabilities act or ADA. So what about people who claim they cannot wear masks for health reasons? Well, title two of the ADA generally prohibits eligibility and screening criteria that would tend to exclude individuals based on disability, unless the criteria are necessary for the business to operate safely in providing its goods and services. Those requirements must be based on actual risks and may not be based on speculation, stereotypes or generalization about people with disabilities. Businesses are safe, generally, in relying on government mask orders and CDC guidance in refusing entry to people without masks and if a person without a mask enters, the ADA only allows a retailer to deny goods or services to an individual with a disability if their presence would result in, quote, a direct threat to the health and safety of others, but only when this threat cannot be eliminated by modifying existing policies, practices and procedures, or permitting another type of accommodation and whether a customer poses a direct threat is an individualized fact sensitive inquiry, but you can imagine that during a pandemic, having an unmasked person spreading, potentially, droplets that carry the virus, could certainly qualify and that puts businesses in a tough spot, because generally, they need to accommodate people with disabilities, but they cannot let that accommodation directly threaten all of the other customers, but in many situations, there might be accommodations that can be offered that, while it wouldn't allow a person to enter a building without a mask on, they might be able to get the goods and services in a different way. For example, in one scenario, a manager offered a woman accommodations that didn't involve wearing a mask, like shopping for her. - [Manager] Okay, can we shop for you? - [Woman] So what does that look like? - Not allowing her into the building, but conducting the shopping on her behalf. Now we tend to focus on the kind of people who are clearly capable of wearing masks, but choose not to, either because they are jerks or insane. The kind of people who claim that a cloth mask will trap the gas, CO2 and also prevent the gas, oxygen, from getting into your mouth. That's not how that works, but that's not to say that there aren't people with legitimate ADA recognized disabilities that might be incapable of wearing a mask. For example, you might think of, perhaps, someone with autism that cannot function with restrictions over their face, which is why the ADA exists in the first place and that's why accommodations should be made if it's at all possible. Things like online ordering, contactless deliveries, curbside pickup and even private browsing at a specific time are all potentially reasonable alternatives for businesses to use, but unfortunately, because this is America, it sure looks as if millions of Americans are suddenly inventing medical reasons for resisting mask orders, without adequate proof and as usual, people are trying to make a buck by selling identification cards stating that the holder has a disability and cannot wear a mask. These face mask exempt cards are all over social media. None of these have any legal force whatsoever, even the federal government is wary of these scammers. The department of Justice issued a warning that any flyer stating that people with disabilities do not need to comply with face mask laws are fraudulent, especially flyers that include the Department of Justice's name and official seal, but businesses find themselves on the horn of a dilemma. On the one hand, they have to comply with the ADA, but on the other hand, they also can't be negligent and lead to the infection of a whole bunch of other people. There is a whole lot of controversy over potentially making businesses exempt from liability related to COVID if certain legislation passes, but at the moment, businesses cannot act in a negligent manner. That's how negligence works in the United States and we probably, as customers, don't want them to behave in a negligent way and if they do, then they might be liable for damages in causing other people to get infected if they acted in a negligent way, which is why in the absence of law to the contrary, businesses can certainly require employees and customers to wear masks, even apart from what is mandated by the state or federal government. - Every single one of you that are obeying the devil's laws are going to be arrested. - Not so fast, Florida woman. Businesses can require customers and employees to wear masks and some businesses have signs, that you might've seen, that say, "No shirt, no shoes, no service." That's because businesses can set their own rules, because they're on private property, as long as they don't violate laws or public health rules and there's certainly an argument to be made that these kind of mask requirements or shoe requirements further public health and don't go against it and so, not surprisingly, this is specifically carved out in the occupational safety and health administration statute, or OSHA. Quote, employers may choose to ensure that cloth face coverings are worn as a feasible means of abatement in a control plan designed to address the hazards from SARS-CoV-2, the virus that causes COVID-19. Employers may choose to use cloth face coverings as a means of source control, such as because of transmission risk that cannot be controlled through engineering or administrative controls, including social distancing. - You're removing our freedoms and stomping on our constitutional rights by these communist dictatorship orders or laws you wanna mandate. - No, that's not how that works. Legal requirements to wear masks are generally legal, but regardless of whether it's legal or mandated, people, use common sense, wear a frickin' mask. - You can't tell by my words and actions, but I'm a Christian and the only person that's gonna tell me what to do is Jesus. - So since state governments can, in fact, legally force everyone to wear masks, you should at least wear the most comfortable one and longtime sponsor, Mack Weldon, has created what might be the most comfortable mask yet. Their masks use incredibly soft Supima cotton and plush ear holes, I guess, ear holes, ear things, to make social distancing safer and way more comfortable and they are guaranteed not to keep oxygen out, or CO2 in. I just made up that last part because it's not actually a thing that you have to worry about. Mack Weldon's is an essential men's clothing company that focuses on smart design and premium fabrics. If I'm not in court or on a Zoom call with a judge, I'm often wearing Mack Weldon. I've tried their polos, their t-shirts, their shorts and of course, they're world famous boxer briefs and if you're watching this channel, as an adult, you probably deserve to have nice boxer briefs and I can tell you, it makes a world of difference. I've ordered Mack Weldon many times with my own money. I usually buy multiple sizes and have them shipped to me and then I just return the ones that don't fit and keep the ones that fit perfectly. Now, if you'd like to try Mack Weldon, you'll get 20% off of your first order by just going to mackweldon.com/LegalEagle, or using the promo code legaleagle at checkout and with Mack Weldon's loyalty program, you can get 20% off, free shipping and access to new products. It's automatic when you sign up and order at mackweldon.com/LegalEagle, so just click on the link in the description, or go to mackweldon.com/LegalEagle for 20% off of your first order and of course, if you wanna try their famous boxer briefs and you decide, for any reason, that you're not satisfied, you can keep them and still get a free refund, because who wants to return used underwear? So, do you agree with my analysis? Are you wearing a mask in public, or are you an idiot and, or from Florida, 'cause God knows those two things are not mutually exclusive. Leave your objections in the comments and check out this playlist over here with all of my other law reviews, where I'm tackling the most important legal issues of the day. So just click on this link and I'll see you in court.
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Channel: LegalEagle
Views: 823,899
Rating: 4.8570848 out of 5
Keywords: Legaleagle, legal eagle, breaking news, case, congress, court case, crime, guilty, jury, latest news, news, not guilty, political, politics, politics news, scotus, supreme court, the trial, trial, Verdict, copyright, law advice, legal analysis, lawyer, attorney, Real lawyer, Real law review, masks, target, florida, covid, covid19, coronavirus
Id: 2lRE1Hqy-Xk
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Length: 21min 5sec (1265 seconds)
Published: Tue Sep 29 2020
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