A Mask Mandate is NOT a law

Wherever I go everyone is wearing mask, it is happening for two months already. What else do you expect from people?
Number of deaths and morbidity far lower in US. then in Europe.
Someone just want to inflate numbers to defeat Trump.

 

Really, got a link ?

 

https://coronavirus.jhu.edu/data/mortality

 

I meant more from an individual perspective, not a business.

 

So were is the comparison to the US vs EU.
US 320 millions, EU 470 millions.
Please produce the data were the US is better of than Europe, Europe has over 500 millions, EU and Europe are 2 differant affairs.

But lets go by Europe, 500 millions vs 320 millions US.

Produce the data.

 

CO is not a individual mandate and no mandate at all.
Its a health order effecting businesses, nothing more.

 

Private businesses can require men to wear a sport coat, women a dress, and all wear leather shoes if they so choose. Of course, you can go somewhere else if you choose.

 

US is about 42 per 100K it is lower then Wester European countries like Italy France UK.

 

Common good? Even the general welfare equals communism, don't cha know!

Yep if you don't wear masks , sowing you will reap what the grim reaper deals in. Lol

Wonder if you won't wear a mask and you give covid to someone who dies...will you go to Hell?

God might say that he created you with a brain that helps to insure you don't kill yourself or others.. And now look what you gone and done!!

But God, not my fault for the devil made me do it!!!

You mean those damned conservatives?

 

You need to read up on administrative law, there are federal rules governing the scope and practice of administrative law, and there are state and municipal versions of same that mimic the same basic dynamic. This is some basics on the concept at the federal level from Wiki. I know its a lot to digest, but ....https://en.wikipedia.org/wiki/United_States_administrative_law
"
Scope and extent of rulemaking power[edit]
Limits on the power of agencies to promulgate regulations include:

1. The regulation must lie within a grant of power from Congress, and that delegation must in turn be constitutional (courts almost never invalidate a regulation on this ground). The power must be granted in the agency's organic statute, and extends so far as fairly inferrable from the statutory language.[2] Statutory grants of authority to agencies are generally construed more strictly than the "necessary and proper" power of Congress granted in Article I, section 8, clause 18 of the Constitution.
2. The regulation must lie within that grant of rulemaking authority (in the extreme case, Congress sometimes includes an explicit limit on the agency's authority). Some agencies have power to promulgate both substantive rules as well as procedural rules; some (like the IRS, EEOC, and Patent and Trademark Office) may promulgate only procedural rules. When Congress grants that authority retroactively, courts carefully scrutinize the case, and sometimes bless the regulation, and sometimes invalidate it.
3. The regulation must be promulgated with observance of the procedures of required by the statutes set forth in the previous section. Among these procedures, one of the most important is the requirement that an agency set forth factual findings sufficient to support a rational basis or by procedures otherwise inadequate to meet the statutes listed above.

Agencies may not promulgate retroactive rules unless expressly granted such power by the agency's organic statute. Bowen v. Georgetown University Hospital, 488 U.S. 204 (198

There is no broad prohibition against an agency's regulation that does not serve the "public convenience, interest, or necessity." The law presumes that rulemaking conducted with procedural safeguards of the statutes and Executive Orders noted above reflect a rational balancing of interests by the agency, and a court will strike down a regulation only for violation of those procedures.

Agencies are permitted to rely on rules in reaching their decisions rather than adjudicate, where the promulgation of the rules is within the agency's statutory authority, and the rules themselves are not arbitrary or capricious. Heckler v. Campbell, 461 U.S. 458 (1983).

Agencies must abide by their own rules and regulations. Accardi v. Shaughnessy, 347 U.S. 260 (1954).

Courts must defer to administrative agency interpretations of the authority granted to them by Congress (1) where the intent of Congress was ambiguous and (2) where the interpretation was reasonable or permissible. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Chevron is probably the most frequently cited case in American administrative law.[3]

Type of rulemaking[edit]
There are five levels of rulemaking procedure:

• Formal rulemaking, which is rulemaking for which the organic statute requires that rules be "made on the record after agency opportunity for hearing" (that is, a trial-type hearing that is taken down by a transcriptionist into the record) and for which the APA prescribes particular procedures. The phrase "on the record" is required to trigger requirements for formal rulemaking; simply requiring that rules be made "after a hearing" does not trigger the requirements of formal rulemaking.
• Informal rulemaking, also known as "notice-and-comment rulemaking," which is rulemaking for which no procedural requirements are prescribed in the organic statute, and for which the APA requires only notice and comment.
• Hybrid rulemaking, which is rulemaking for which particular procedural requirements beyond notice and comment, but not rising to the level of formal rulemaking.
• Negotiated rulemaking under 5 U.S.C. §§ 561–570 of the Administrative Procedure Act.
• Publication rulemaking, or "nonlegislative rulemaking," typically for procedural rules, interpretative rules, or matters relating to agency management or personnel, that an agency may promulgate by publication in the Federal Register.

Nonlegislative rules: interpretative rules, "statements of policy" and guidance[edit]
"Nonlegislative rules" include three main classes:[4]

• interpretative rules under 5 U.S.C. § 553(b)(A), which interpret ambiguities in binding rules, but themselves have only the limited binding effect of Skidmore deference.
• "statements of general policy," purely hortatory rules directed to the public, also promulgated under 5 U.S.C. § 553(b)(A).[5] Typically, a "statement of policy" uses words like "should" instead of "must" or "shall," to advise the public of an agency's preference that the agency does not intend to enforce.
• "housekeeping rules" or "matters relating to agency management or personnel" directed to agency staff, including agency staff manuals, staff instructions and memoranda, and the like, promulgated under 5 U.S.C. § 301 and authority delegated to agency heads.

A class called "guidance" includes all rules not promulgated by legislative procedure. Such rules may be published as guidance, guidelines, agency staff manuals, staff instructions, opinion letters, interpretive memoranda, policy statements, guidance manuals for the public, circulars, bulletins, advisories, press releases stating agency position, and the like. The class of "guidance" is almost, but not exactly, coextensive with the union of the sets of interpretative rules, general statements of policy, and housekeeping rules.

Agency Interpretations: § 553(d) “Interpretative Rules” vs. Chevron/Auer Interpretations[edit]
Every statute and regulation has some lingering ambiguity. Someone has to have authority to adopt some interpretation, and do so with a minimum of procedural delay. So the law grants every agency the authority to promulgate interpretative rules, and to do so with minimal procedural fuss. By default, most interpretations slot into the “interpretative rule” category of 5 U.S.C. § 553(b).

If an interpretation satisfies a long list of criteria, then the interpretation is binding on parties before the agency, courts, and the agency itself, under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. (for agency interpretations of statute)[6] or Auer v. Robbins (for agency interpretations of regulations).[7] (The inquiries under Chevron and Auer are slightly different. But the analytical similarities overshadow the differences. For this short article, we will gloss over the differences, and treat Chevron and Auer together).

Any interpretation that fails any one of the Chevron/Auer eligibility bullets from the list below falls into the residual category of “interpretative rule.”

Interpretative rules and Skidmore deference[edit]
Fundamentally, the § 553(b) “interpretative” exemption from notice and comment is a rule of necessity—essentially all laws have some ambiguity, that ambiguity has to be interpreted, and (for public-facing substantive rules) the agency is the party that can do so expeditiously and fairly. Deference follows to the degree the agency demonstrates fairness and diligence in developing its interpretation (under Chevron, Auer, or Skidmore v. Swift & Co., as appropriate).

The quid pro quo for an agency's choice to exercise the “interpretative” option, and forego the formalities required for legislative rulemaking or for Chevron or Auer deference, is that the agency has very little enhanced power to enforce its interpretation. If a party challenges the agency's interpretation, an agency's invocation of the “interpretative” exemption surrenders any claim to heightened Chevron or Auer deference,[8] and the interpretation falls into the residual category, under which a court gives Skidmore deference to an agency's informed position:[9]

We consider that the rulings, interpretations and opinions of the [agency], while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance. The weight of such a judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.
As a practical matter, an agency operates under the agency's interpretative rules. The law permits parties before the agency to argue alternative interpretations, and under the law, agencies are supposed to respond to the arguments, and not foreclose alternatives suggested by parties. But as a practical matter, agencies seldom give anything more than short shrift consideration to alternatives. On judicial review, the practical reality is that a court is most likely to agree with the agency, under Skidmore deference. But Skidmore deference is only as strong as the quality of the agency's analysis, and courts regularly overturn “interpretative” rules.

 

So, you’re basically praising g a governor for taking some sort of authoritative action?

Criminal penalties for an “order” (basically a recommendation by the health department) could be fought and tossed out in court, with the worst it could do resulting in a fine. Because a order alone does not carry criminal penalties. Lawyers would eat this type of thing up because it would be a winnable case.

You don’t ha e to have d a degree in law to understand this, just basic civics.

 

Right, and blind sheep will do as directed. Private businesses can also look at that as a form of voluntary loss, because you are losing business in a attempt to force customers to do something against their will or individual morals.
That is not American.

 

Link?

 

Just wear the ****ing mask

Do you want this crap to go on forever?

 

The mortality rate is falling, recoveries are building, we can end this now.
And we don’t need a mask mandate to do it.

 

You can't even slow it down.

 

Aaaaaah now we are down to countries, instead of Europe.

 

It is a legit health order and it includes possible penalties. Nothing wrong with that all legal.

It seams to me you have very little understanding of the matter.

I am praising our governor to take the proper steps and so preventing a probable shut down, again.

 

I gained a new clientele, which appreciates the effort to provide a save environment and I like them, very nice people, who say thank you a lot.
I do not mind to have lost the bombastic, arrogant and egoistic grouchy my freedom first crowd.

 

And you are just figuring all this out?

It is sort of a law in one sense. Legislatures have passed laws delegating out their powers to other officials or bureaucrats to make regulations, which basically have the force of law.

If you see a big inherent problem with that, you are not the only one. Libertarians have been trying to warn people and raise this issue for years.

You are subject to laws which your politicians never decided.

 

And this is another issue I tried to raise on this forum in the past, but everyone here pretty much just ignored it.

The concept of "trespassing" can be a blurry line in some cases.
In my view, an employee who works there should at least have to order you to leave before it is trespassing.
However, that view has been reinterpreted, and now it is considered trespassing if you didn't follow rules where you should have known that the business did not want you there.

From a Libertarian perspective, I don't see a problem with people being required to follow whatever silly rules are set by a private business.
However, the issue is how exactly those rules are going to be enforced.

 

It is beginning to pick up again. You need about two to three weeks or more from infection. Many of the people who have been getting infected are young. They will pass it on to older people. However that does not mean they do not need hospital treatment to save their lives. Hospitals in areas which have seen this increase like Florida, Texas, Arizona are getting overwhelmed. That is likely to lead to an at least local lockdown and to people dying because they have been unable to get treatment due to the numbers in hospital with Covid 19. The sad thing about the US is that it could have sorted this out relatively easily but because of the 'will' of the people economically it looks like you are going to finish yourselves off. I wonder how big some people will feel then.

 

Actually a business owner has the right to deny service for any reason so long as that reason doesn’t infringe on your Civil Rights. A retailer can have the police come and trespass you from their establishment with either a verbal or written warning. Then the next time you visit that establishment you can be arrested for a trespass violation. Now, if the business owner was only requiring males or blacks to wear masks than that would be an infringement of your civil rights.

A Mask Mandate is NOT a law
And you are 100% correct about this. An Executive Order is not a law. A law, whether at the state or federal level must go through a process requiring elected legislators to vote on a bill making it a law.

 

.
In the face of that devastating pandemic, the judicial branch seemed to adopt a non-justiciable, political question-type approach to local health measures in an emergency. Typical is the Supreme Court of Arizona’s pronouncement, “Necessity is the law of time and place, and the emergency calls into life the necessity … to exercise the power to protect the public health.” In 1905, the U.S. Supreme Court had called for just such deference in Jacobson v. Massachusetts. In the midst of a small-pox outbreak, local authorities could mandate vaccination on penalty of a fine for refusal: “Upon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.”

https://www.acslaw.org/expertforum/face-covering-requirements-and-the-constitution/

 

It was in Orlando, same place where 2 different testing facilities, including 1 for VA, offered positive rates that were 10 times higher than actual rates after a local station started asking questions.