At A Glance: Preemption and the Pandemic July 12, 2020

In This Edition: State/Local Conflicts Over Masking Orders Trending Now: ● A List of Preemption Suits Against Local Tenant Protections ● State/Local Fights Over Federal COVID-19 Funds, ● Friction Over School Openings

Mandatory Masking Orders Spark More Conflict

This weekend, Louisiana became the 25th state to issue some form of a mask mandate as ​ ​ ​ governors are facing increasing pressure to pass statewide mask requirements and mount a more coherent pandemic response as coronavirus cases soar to record levels. Local officials ​ ​ and health experts have warned that infections could continue to spiral out of control unless governors issue public health measures that apply to everyone. The resurgence of the virus, ​ ​ ​ particularly in the Sun Belt, has left some mayors of hotspot cities frustrated with their governors over their lack of control to require residents to wear masks or stay at home. “The rising tide of coronavirus cases in the U.S. South and West, coming four months into the outbreak, emerged amid a patchwork of often confusing or conflicting rules across government that have proved inconsistent and often difficult to enforce, making the pandemic harder to halt,” the Wall Street Journal reports. ​ ​

Alabama A bipartisan group of 10 mayors from ’s largest cities have argued in favor of a statewide mask order, telling Gov. Kay Ivey (R) that it was necessary as cases have climbed steadily in the state. Ivey has previously dismissed the idea. Her coronavirus orders say only ​ ​ that the state’s two largest counties, Jefferson and Mobile, can be more stringent than the state. But State Health Officer Scott Harris said he has been encouraging local mask orders.

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Montgomery Mayor (D) said his office interpreted the governor’s order as allowing for local orders that are stricter but not looser. He implemented a mask requirement by executive order in mid-June; the city council adopted it as law this week.

Arizona Governor Ducey has decided to re-close bars, gyms and movie theaters, but his order only ​ ​ closes these high-risk establishments through July 27. It will likely be necessary to extend this shutdown, and it may prove necessary to re-close other parts of the economy.

When Governor Ducey first issued his stay-at-home order, in late March, he simultaneously preempted cities and counties in Arizona from acting on their own. The governor partially ​ ​ ​ reversed course in mid-June, declaring that local officials would be allowed to require ​ masks—but not restrict businesses—in their communities, removing a barrier to local control. “ This week, Kristin Urquiza wrote in a scathing obituary in the Arizona Republic that her father, ​ ​ ​ Mark Urquiza, should still be alive: “His death is due to the carelessness of the politicians who continue to jeopardize the health of brown bodies through a clear lack of leadership, refusal to acknowledge the severity of this crisis, and inability and unwillingness to give clear and decisive direction on how to minimize risk.” Florida Despite the fast his state set a single day record for COVID-19 cases this weekend and a physicians’ protest outside the Governor’s Mansion, Gov. Ron DeSantis has refused to implement a state-wide mask mandate. In lieu of state leadership, Multiple local governments ​ have issued their own mask orders – and have been challenged in court for issuing those orders.

State Rep. Anthony Sabatini is spearheading legal challenges against seven local masking orders. A virtual hearing was held Friday for the lawsuit Sabatini filed against the Leon County ordinance. The judge upheld the order. Other lawsuits against local masking orders include: ​ ​

● Palm Beach County Mask Mandate Lawsuit ● City of St. August County Mask Mandate Lawsuit ● Jacksonville Mask Mandate Lawsuit

Georgia Gov. slammed the mayor's decision to move the city's reopening back to ​ phase 1, saying the action was "merely guidance -- both non-binding and legally ​ unenforceable." Phase 1 includes an order for residents to stay home except for essential trips. The mayor, , who has tested positive for Covid-19, defended her decision ​ ​ saying the state opened recklessly and residents were "suffering the consequences." "As clearly stated in my executive orders, no local action can be more or less restrictive, and that rule applies statewide," Kemp wrote on Twitter. ​

Earlier this week, Kemp’s office said mask requirements adopted by Mayor Bottoms and the leaders of Savannah, Athens and other cities are “unenforceable,” but stopped short of

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“Like all of the local mask mandates, Mayor Bottoms' order is unenforceable,” said Kemp ​ ​ spokeswoman Candice Broce. “We continue to encourage Georgians to do the right thing and wear a mask voluntarily.” Kemp has encouraged the use of masks, but not required them, and signed a measure that prevented local municipalities from creating stronger provisions than ​ ​ those that are in his emergency order.

Iowa The mayor of Muscatine has implemented a mask mandate in an effort to limit coronavirus ​ ​ exposure, at a time when other communities in eastern Iowa are seeing a spike in cases. But questions persist about the legal authority of local officials in Iowa to issue such orders. Mayor Diana Broderson defended the order at a tense press conference on the steps of City ​ ​ Hall Sunday afternoon. A group of people gathered in opposition and repeatedly interrupted her and local health care experts, shouting down the speakers multiple times. Iowa Gov. Kim Reynolds this week said the mask order in Muscatine, the first in the state, was ​ ​ invalid. But she said she would consider allowing some Iowa counties where cases are spiking to mandate masks. Throughout the coronavirus crisis, local officials in Iowa have been frustrated ​ that their abilities to take emergency action to respond to the pandemic have been preempted ​ ​ ​ by the state government. ​ Kentucky Kentucky’s Democratic governor Andy Beshear this week instituted a new requirement that people wear face coverings in many public settings, a move that has put him at odds with the state’s Republican attorney general and a judge who has issued a restraining order against future coronavirus-related executive orders.

A county circuit judge this week sided with plaintiffs who sued over Gov. Andy Beshear’s capacity limit on agriculture tourism businesses, the Louisville Courier-Journal reported — ​ ​ delivering a victory for Kentucky Attorney General Daniel Cameron, who has challenged Beshear’s measures to stem the spread of the coronavirus.

The judge also took aim at future orders from the governor, saying Beshear must “specifically state the emergency that requires the order, the location of the emergency, and the name of the local emergency management agency that has determined that the emergency is beyond its capabilities,” according to the Courier-Journal. Beshear slammed the judge who “thinks he’s an epidemiologist.” He called the judge’s actions “absolutely irresponsible” and “absolutely wrong under the law.”

Louisiana Louisiana Gov. John Bel Edwards has issued an executive order requiring all people ages 8 and older to wear face coverings in public to curb the spread of the coronavirus, according to the Baton Rouge Advocate. ​ ​ The state’s Republican lawmakers, who have opposed coronavirus restrictions, are likely to ​ ​ speak out against the measure. Louisiana Attorney General Jeff Landry (R) recently spoke out

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Michigan Michigan Gov. Gretchen Whitmer (D) has issued an executive order telling businesses in the ​ state that they must refuse service to customers who aren’t wearing masks. Businesses that fail ​ to comply could face a temporary suspension of their license, while individuals face misdemeanor charges, but not jail time. The new order takes effect on July 13.

Mississippi Mississippi Gov. Tate Reeves imposed a mask requirement after the stated recorded more than 5,600 cases in the first eight days of July. His order applies to 13 of the state’s 82 counties, including some of Mississippi’s largest cities. “We’ve been begging for a uniform response from the state,” said Mayor (D) of Jackson, Miss., where hospital intensive care unit beds were nearing full capacity. Lumumba, argued the order was toothless unless it covered all state residents.

North Carolina North Carolina required mask-wearing statewide on June 26, but a dozen sheriffs said they ​ ​ wouldn’t make people abide by it. “We’re not going to harass people,” said Sheriff Sam Page of Rockingham County, a Republican. “When people feel that they’re being told what they can and can’t do here in America, that goes against the grain of what America stands for.” A spokeswoman for Gov. Roy Cooper said that the governor’s order is meant to slow the spread of the virus and: “It is the responsibility of law enforcement to enforce this and other orders.”

Ohio Ohio Gov. Mike DeWine (R) tried to mandate masks in the spring but backed down after a torrent of criticism. He has since instituted a county-by-county approach, only requiring masks in places where health officials say the virus spread is “very high.” It remains unclear how that order will be enforced. Some local officials have said it is not their responsibility. In a rare ​ ​ front-page editorial Saturday, the Columbus Dispatch said the move was “akin to closing the ​ ​ barn door after the horses have escaped.”

South Carolina South Carolina Gov. Henry McMaster (R) has repeatedly argued that mask mandates are unenforceable, possibly unconstitutional, and create “a false sense of security.” But Columbia ​ ​ Mayor Steve Benjamin, a Democrat and Greenville Mayor Knox White, a Republican both issued a mask mandates last month. And local officials in the coastal cities of Myrtle Beach and North ​ ​ Myrtle Beach decided to require mask-wearing there. The state has taken no action against ​ ​ them.

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Texas As Texas is struggling with a massive surge in coronavirus cases, Gov. Greg Abbott reversed course and issued a statewide mask mandate that came with several exemptions, including ​ ​ ​ churches and polling places. Abbott also issued a proclamation giving mayors and county ​ judges the ability to restrict some outdoor gatherings with more than 10 people. But the ​ Governor continues to resist giving local governments more power to respond to the crisis in their communities.

Austin Mayor says the state needs a statewide stay-at-home order, and if the ​ Governor is not going to order it, he wants the ability to do so for his city's residents. "You know, we had that local control back in March, and we exercised it. I want that local control now." That sentiment was echoed by Judge Lina Hidalgo, the top elected official in Harris County, Texas, which includes . that the mask mandate was too little, too late, ​ and called for more local control. ““We don’t have room for incrementalism If I could, right ​ ​ …​ now, I would put the community under a stay-at-home order,” Hidalgo said as hospitals, testing supplies and contact tracing resources in Houston are overwhelmed. “Face coverings aren’t going to cut it.” But she said doing so would “be breaking the law.”

In an live interview this week, Governor Abbott washed his hands of the surge, claiming mayors ​ and county judges are not doing what they should. “All of these local officials asking to shut ​ Texas back down, they've absolutely refused to enforce the current executive orders that are already in place," said Governor Abbott. "They need to show action, not absenteeism.” He said that local officials should focus on enforcing the orders already in place rather than being “more punitive.”

Meanwhile, some Texas county Republican parties in recent days have formally ​ condemned Gov. Greg Abbott for going too far in his coronavirus response. Republicans aligned ​ with the grassroots wing of the party have argued he has violated various provisions of the party’s core principles with the executive orders he’s put in place in response to the pandemic. At least 78 counties have taken Abbott up on his offer to let them opt out of his order requiring ​ ​ people wear face masks. A handful of other local governments have insisted that they won’t enforce the order even though they don’t qualify for the opt-out provision.

Trending Now

Preemption suits against local tenant protections continue to proliferate. Attached is a ​ running list of: Suits Challenging State and Local Eviction Moratoria and Other ​ Pandemic-Related Tenant Protections (As of 7/10/20)

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Friction over control of federal COVID-19 funds. In Illinois, cities, retail and manufacturing ​ ​ groups are trying to make the case for local control over allocation of the federal funds. ​

State and local officials argue over control of school openings. In Ohio, there is concern the ​ state is “passing the buck, “ forcing local officials to make unpopular political decisions about ​ ​ reopening. In Minnesota, Republican state lawmakers plan to introduce a bill during this week's special session to give local officials and districts power over their own re-openings or remote learning plans -- as opposed to Gov. Tim Walz's administration calling the shots. And state ​ ​ officials in Montana, California, Wyoming and other states shrug at President Trump’s threat to ​ ​ ​ ​ ​ ​ withhold federal education funds unless schools reopen in the fall.

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