Attorneys Marc Lopez and Joshua Claybourn recently discussed the latest news on facemask rules in Indiana. They covered a lot in a short period of time, including what the Constitution says about facial coverings, the limits of a governor’s authority, and how a store’s mask policy is arguably no different than the familiar standard of no shirt, no shoes, no service. What follows is a lightly edited transcript of their conversation.

Marc Lopez
Governor Holcomb just announced there will be a mandatory mask mandate in Indiana starting July 27, so I thought this would be an excellent chance for me to reach out to my friend, Josh, who I consider an expert on government affairs and legislation. He’s a true resource. 

We did a video back when the emergency was declared about the shutdown orders, and it was very well received. Josh, thank you for chatting with me again.

Joshua Claybourn
Thanks for having me, Marc. I always love talking with you, and I love the informative videos and radio pieces you put out.

Marc Lopez
You’re making me blush, dude. I appreciate that. I texted you as soon as I heard that Governor Holcomb was doing a mask mandate, and I really want to ask you, number one—can he do this? 

Number two—is this something that the legislature envisioned when they granted him the emergency power?

Joshua Claybourn
Well, if you don’t mind, maybe it makes sense to summarize what we understand his order will be. He’s not actually issued the order, but he has telegraphed what he intends: Effective Monday, July 27, an order will go into place that will require masks used statewide. There are some caveats that apply to people eight and older, when you’re indoor, inside a business, transportation, or when you’re outdoors and can’t socially distance. 

It makes masks required in schools for grades three and up, with some exceptions for physical activities. And then there’s other exceptions for medical purposes, strenuous activities, eating and drinking—that sort of thing. So we haven’t seen the order itself and don’t know all of the specifics, and I’m sure the order is gonna reference the statutes that it relies on for its authority, but that’s what Governor Holcomb telegraphed in his press conference today. 

So, can he do it? The short answer is probably yes, but there’s a bit of a longer answer, and in some ways, it gets to be a little academic. This is in a lot of ways, a legislative function. As I think most of us remember from high school, we’ve got three different branches of government here in the state, much like we do at the federal level. And it’s up to the State Assembly to pass laws that then go on to the governor, who signs those laws into power. 

Well, here we have the governor, by executive order, issuing what is, in effect, new legislation. Is that permissible? Typically the answer is no, but what the state legislature has done is said in these certain emergency situations, we’re going to grant the governor pretty sweeping executive power. And he’s declared that emergency because of the pandemic, so he’s exercising the power that was granted to him pursuant to the legislature. 

Most courts are going to say that’s permissible. He’s allowed to do that. There’s a sufficient, reasonable basis for the legislature to delegate those powers. There is, however, what’s called the nondelegation doctrine, and that’s the theory that one branch of government can’t authorize another entity to exercise its own powers. So if I was somebody who didn’t like this executive order and really wanted to attack it, I think that would probably be one of the stronger ways to do it. 

You can’t say, Where’s your authority? The governor’s going to say, In an emergency, I have all of these sweeping powers, and the legislature very clearly authorized me to have them, and I’m going to exercise them. I think under the law, he has that power. I think the constitutional issue really is can the executive do something that is more legislative in nature? 

We have all sorts of cases that have examined this from all sorts of different angles. I haven’t looked in depth at a pandemic-type situation—and I’m confident it hasn’t been addressed in terms of face masks—but I think when you look at the totality of those other cases, it’s probably going to be a court’s decision that yes, the governor can issue that kind of order in this sort of environment.

Marc Lopez
Josh, give us a concrete example of the nondelegation doctrine in action. 

Joshua Claybourn
Here’s a good example: Congress said, as we continue to develop more complex drugs, and our food system becomes more and more complex, and we’re buying food from other countries, other states, et cetera—they said, Look, we can’t legislate every type of food or drug issue that may come up, so we’re going to create a new part of the executive branch called the Food and Drug Administration—the FDA

So through the FDA, the Congress empowers the executive branch to regulate food and drugs. The FDA will come up with all sorts of rules that are really legislative in nature—can Congress delegate that power to the FDA? Courts have looked at that and said, yes, they can. And that’s even in a nonemergency situation. 

When you layer on that there’s an emergency going on, and the governor’s issuing this sort of mandate, I have to think that a court is probably going to be okay with that.

Marc Lopez
That’s a great example. You’re taking me back to admin law days—making my brain hurt over here. In the media, we hear about a lot of people throwing fits over not being able to go to a store without a mask when the store has a mask mandate. 

Is there a constitutional right to go to a store without a mask?

Joshua Claybourn
Absolutely not. I think when people get into these debates online, it’s really important to try and separate what is legal from what is right, you know? And I think people have this argument of I should be allowed to do this all I want. Well, that’s more of the policy argument, and you can make that, but when you come to me as a lawyer and say, Does a private business have the ability to set their own policies? The answer is absolutely, yes

A classic example, we hear bandied about a lot online is no shirt, no shoes, no service, right? People try to make the same analogy for the masks because of the pandemic we have going on, and I think it’s a decent analogy—but you know, businesses have the right to set whatever parameters within certain bounds. 

You can’t exclude someone just because they’re a man, or just because they’re black or white, but generally speaking, businesses have the right to decide what kind of baseline service they’re going to provide, and how you need to be dressed, or what kind of safety precautions they want to take before you’re able to patronize their business.

Marc Lopez
Thank you so much, Josh. I appreciate this. And then if there’s any zingers in the actual executive order, we might have to update this.

Joshua Claybourn
I appreciate you having me on, Marc, and I know that it’s probably not the last we’ve heard of this. In a state as big as ours, I have a feeling we’ll have somebody test the waters of this constitutionally and file a lawsuit—certainly in other states too. 

So it’ll be academically fun to see how that plays out from a legal perspective. But I have to think that the courts are ultimately going to say that the governor has sufficient executive authority in the midst of this emergency.

Marc Lopez
Thank you so much, Josh. You have a great day.

Joshua Claybourn
I appreciate it, Marc. Thanks again.