To address the COVID-19 pandemic, on March 8, 2020, Governor Kate Brown declared a state of emergency citing ORS 401.165 as support for her action. That statute allows the governor to declare a state of emergency “after determining that an emergency has occurred or is imminent.” “Emergency” is defined as “a human-created or natural event or circumstance that causes or threatens widespread loss of life, injury to person or property, human suffering or financial loss, including but not limited to … disease.” Declaring a state of emergency gives the governor authority to exercise certain powers and take certain actions, including “all police powers vested in the state by the Oregon Constitution.”
In June, the governor issued a series of executive orders relating to the pandemic. One controversial aspect of the orders is the requirement to wear face coverings. The mask mandate has evolved through multiple executive orders and variations of guidance issued by the Oregon Health Authority (“OHA”). Executive Order 20-27 requires individuals and businesses to adhere to OHA guidelines, including guidance relating to face coverings.
On June 30, 2020, the OHA issued its “Statewide Mask, Face Shield, Face Covering Guidance.” Since then, the OHA guidelines have been updated and expanded multiple times. As of early August, the guidelines generally require businesses (and other areas open to the public) to mandate that all employees and customers wear a mask, face shield, or face covering. The guidelines also require individuals to wear a mask, face shield, or face covering when they are outdoors and cannot maintain at least six feet of physical distance from others.
There are exceptions. The mask guidelines do not apply to children under the age of two. They also do not require that a face covering be worn during certain activities, including eating, drinking, and engaging in an activity during which the wearing of a face covering is not feasible, such as swimming. The guidelines do not require employers to mandate a face covering for employees who do not interact with the public and can maintain at least six feet of physical distance with others. The guidelines do require businesses to make accommodations for employees and customers with disabilities (such as providing curbside pickup to a customer who is unable to wear a mask into a store).
There is debate, both about the scope of the governor’s authority to require adherence to OHA guidelines and whether the mask requirement is constitutional in certain circumstances. The Oregon Court of Appeals recently denied an effort to stay enforcement of the OHA guidelines. The Oregon Supreme Court likewise denied an effort to stay the limitations on public gatherings included in Governor Brown’s orders. Neither court directly addressed the substance of the executive orders or OHA guidelines because both decisions were based on what were essentially procedural grounds. However, as explained below, the courts did address the legal authority to issue the orders and the governor’s expansive powers under the current circumstances.
As the Oregon Supreme Court explained in ruling on the challenge to the limitations on public gatherings, “‘police power’ refers to the whole sum of inherent sovereign power which the state possesses, and, within constitutional limitations, may exercise for the promotion of the order, safety, health, morals, and general welfare of the public.” The court explained that “the legislature has given the governor authority to exercise the state’s police powers during a state of emergency, and those powers include the power to regulate conduct for public health and safety.”
While extremely broad, the governor’s powers during a state of emergency are not unlimited. The governor’s emergency powers flow from an act of the legislature and Oregon law allows the legislature to vote at any time to terminate a state of emergency. Likewise, a court may prevent the governor from acting in a way that exceeds statutory or constitutional limitations. Under the statute governing states of emergency, the governor’s exercise of police powers must address the declared emergency. While courts have made clear that they will not second guess a governor’s judgment in determining the best way of addressing a particular problem, the statute does not permit a governor to take an action that is unrelated to the declared emergency. In denying the attempt to stay enforcement of the OHA guidelines, the Oregon Court of Appeals specifically held that the face covering mandate was an effective means of preventing the spread of the virus and was therefore directly related to the governor’s strategy to contain the virus.
The governor’s actions during a state of emergency must also remain within constitutional limits. As the Oregon Supreme Court noted, a government action directed at an emergency might be exercised against certain people “in such an arbitrary, unreasonable manner, or might go so far beyond what was reasonably required for the safety of the public” that a court would be compelled to step in. The case challenging Governor Brown’s order imposing limitations on public gatherings involved a church’s claim that enforcing these limitations would interfere with individuals’ constitutional right to the free exercise of their religion. While the court did not rule on this specific argument, it did note that certain limitations on an individual’s exercise of religion do not necessarily violate that individual’s constitutional rights. To that end, the court cited a United States Supreme Court case holding that “[T]he right to practice religion freely does not include liberty to expose the community … to communicable disease.”
Given the Oregon Supreme Court’s skepticism toward the objections thus far, it seems unlikely that an Oregon court will uphold a state or federal constitutional challenge to the OHA guidelines. Whether other challenges to the governor’s emergency orders will meet greater success remains to be seen.
Legal editor: Scott J. Aldworth