SLC Mayor’s K-12 Mask Mandate Is On Shaky Legal Ground

In a defiant move that contradicts the Legislature’s intent, if not actual codified statute, Salt Lake City Mayor Erin Mendenhall has unilaterally issued an executive order declaring an emergency due to Covid-19, and ordering all children in K-12 schools in the city to wear a face mask.

But does she have the authority to do so?

Earlier this year, the Legislature enacted a new law designed to substantially restrict the ability of local officers, including health departments, from issuing orders that restricted people’s rights. Because these health departments are at the county level, that is where orders were previously being issued, and that is where the Legislature focused their restrictions.

But Mayor Mendenhall thinks that this county-based focus is what allows her, a city mayor, to have some wiggle room and proceed to issue her own mandate for school children.

And yet, awkwardly, her own “legal framework” analysis makes clear what the problem with her order is. “After a Mayor declares a local emergency,” the document explains, “the Mayor may exercise emergency authority” which includes “utilizing all available resources” of the city and “employing measures and giving direction to local officers and agencies” in order to help respond to the disaster.

In other words, her own legal justification makes clear that she lacks the authority to control people’s behavior. Declarations of emergency are designed to unlock government resources and allow executive officers to dictate actions to government officials in order to respond to the temporary threat.

Conversely, such authority is not intended to allow a Mayor to decree, on her own, that all people living in her jurisdiction must be restricted and behave as she demands.

This is further evidenced by the fact that state law refers to an “order of constraint” that broadly includes restrictions such as mask mandates, lockdowns, and so on that control people’s behavior — for example, an order of constraint involves the government “exercis[ing] physical control over property or individuals” or “requir[ing] an individual to perform a certain action or engage in certain behavior.”

And in state law, such orders are “issued by a local health department in response to a declared public health emergency,” subject to a variety of restrictions in the new law.

Who is not authorized under state law to issue an order of constraint? City mayors.

Mayor Mendenhall’s executive order cites two state laws as the basis for her supposed authority. The first is Section 53-2a-205 — the same section the “legal framework” summarized above, falling short. The law says that a Mayor can “take any additional measures the [mayor] may consider necessary” and spells out a list of examples, clearly designed to respond to a temporary threat using government resources. None of the examples mentioned pertain to dictating how people must behave. (That would be an “order of constraint.”)

The second state law cited for authority is 53-2a-209, in the same area of law as the previous section. Here, the law says that the mayor’s orders have “the full force and effect of law during the state of emergency,” making clear that lawful orders by an executive, during an emergency, must be obeyed. But this section of law doesn’t refer to which orders are allowed to be given — only that once orders are properly made, they are lawful. You would need to look elsewhere in the law for a list of what type of orders can be given (and hint: for mayors, such orders do not include an “order of constraint”).

A declaration of emergency is intended to provision government resources in order to ameliorate a disaster — not to restrict people’s activities and mandate certain behavior on their part. Mayor Mendenhall lacks legal authority for this order, as her own legal framework summary suggests.

Even more oddly, her order says this: “Salt Lake City’s personnel and resources are ordered and authorized to perform all functions authorized by federal, state, and local law to address this local emergency.” It is entirely unclear what this even is in reference to. What is the list of “functions” all government employees in Salt Lake City are now “ordered to perform” by every relevant law imaginable?

This executive order is on very flimsy legal footing and is vulnerable to a lawsuit. Should no suit occur, the order stands for 30 days, at which point, under state law, the city council must extend the order for it to continue. They are allowed to extend it for any length of time they desire, so long as their motion specifies a future date. The Legislature may also intervene to terminate this order if the city council does not.

It remains to be seen if other elected officials will take action to provide a “check and balance” to this apparent violation of executive authority.