Editor’s note: This article has been updated.
Gov. Eric Holcomb lacks the authority to enforce the statewide mask mandate he announced on Wednesday and should call a special session of the Indiana General Assembly if he wants to implement the requirement, Indiana Attorney General Curtis Hill said late Wednesday.
Hill issued an advisory opinion saying state law doesn’t give the governor specific authority to require face coverings or to create penalties for failing to wear a mask.
“Without properly delegated authority from the General Assembly, the proposed order would not have the force and effect of law,” Hill wrote in the advisory opinion, which was requested by five Republican senators: Jim Buck of Kokomo, Blake Doriot of Syracuse, Aaron Freeman of Indianapolis, Mark Messmer of Jasper and Jim Tomes of Evansville. “The General Assembly would need to specifically and clearly allow for a mask mandate by law.”
Holcomb, also a Republican, announced on Wednesday afternoon that he would issue an executive order, effective Monday, requiring masks for anyone who is 8 years and older in indoor public places, commercial entitles, transportation services or in outside public spaces where social distancing isn’t possible.
He said the order would require students in grades 3 and up to wear masks in school.
The governor said exceptions will be made for medical purposes, strenuous physical activity, eating and drinking.
There won’t be any “mask police,” Holcomb said, but violations will be considered a Class B misdemeanor, which can result in up to 180 days in jail and a fine of up to $1,000. However, as of noon Wednesday, Holcomb’s office had not posted the text of the mandate on the governor’s executive orders website.
Hill wrote in his advisory opinion that “the governor has taken conduct that has not been specifically criminalized by the General Assembly and unilaterally declared it as criminal.” And he said lawmakers have not given Holcomb the authority to create a crime.
The opinion says that the Indiana Constitution – specifically, the “nondelegation doctrine” – limits the legislative branch’s ability to transfer its lawmaking powers to administrative agencies in the executive branch.
“The legislature may only delegate rule-making powers to an administrative agency if that delegation is accompanied by sufficient standards to guide the agency in its exercise of its statutory authority,” Hill wrote, citing Gunderson v. State, Indiana Department of Natural Resrouces, 90 N.E.3d 1171, 1186 (Ind. 2018).
He also cited to Tyus v. Indianapolis Power & Light Co., 134 N.E.3d 389, 408 (Ind. Ct. App. 2019), and Healthscript Inc. v. State, 770 N.E.2d 810, 814 (Ind. 2002), the latter of which holds that “(f)or the legislature to delegate more general and prospective rule-making powers to an agency, they must also prescribe sufficient standards to guide an agency in the exercise of statutory authority.”
“… (H)ere, the General Assembly has not sufficiently articulated standards to guide the governor in the exercise of emergency powers under (Emergency Management and Disaster Law), including what acts may be subject to a criminal penalty, and when the emergency ends,” Hill wrote.
As to the criminal penalty of the mask mandate, the AG noted that in Tiplick v. State, 43 N.E.3d 1259, 1266 (Ind. 2015), an administratively created crime was upheld. However, “the General Assembly had provided clear guardrails and a delegation of authority to define what constituted the offense.”
“That is,” Hill wrote, “the General Assembly laid out the criminal behavior, and the board filled in the gaps. The General Assembly has not done that here.”
A mask mandate may be acceptable under U.S. Supreme Court precedent in Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 29 (1905), Hill said, but “it is still required to be a law that is duly enacted.”
“Under our system of government, the legislature passes laws, and it is the executive’s job to enforce laws,” the AG concluded. “Here, the governor has created a law in violation of separation of powers.”
Holcomb’s office did not immediately respond to an Indianapolis Business Journal request for comment about Hill’s opinion.
Hill’s official opinion is considered only advisory and does not carry the weight of a court ruling or the force of law. The attorney general said in the opinion that he encourages the use of masks but said “individual rights secured by the Constitution do not disappear during a public health crisis.”
Holcomb has issued a series of executive orders under the state’s Emergency Management and Disaster Law in response to the pandemic, including one that declared a public health emergency in Indiana. He has renewed that order four times, with the most recent order set to expire on Aug. 3.
The Emergency Management and Disaster Law gives the governor broad powers once he has declared an emergency. Among the provisions, the governor is permitted to “use all available resources of the state government and of each political subdivision of the state reasonably necessary to cope with the disaster emergency.” In addition, the law says the governor can “take any action and give any direction to state and local law enforcement officers and agencies as may be reasonable and necessary for securing compliance” with the emergency law.
The governor said Wednesday that an escalation in the number of COVID-19 cases in Indiana led to his decision to require masks.
But Hill said in his opinion that as Indiana has moved out of the early stages of the pandemic and there is “less of a sense of immediate emergency,” the governor should be acting with support of the General Assembly.
“As the representatives of the people, the General Assembly should have a say in the regulation of behavior and whether there is a criminal element to violating an order issued by the governor,” the opinion said.
Hill wrote that Holcomb has left lawmakers “on the sidelines” during what he said is “perhaps the most significant event of the century.”
Democrats in Indiana have already called for a special session.
The Senate Democratic Caucus, House Democratic Caucus and Indiana Black Legislative Caucus announced Tuesday during a press conference that they want lawmakers to come back to Indianapolis in August to address criminal justice reform, absentee voting and oversight of how the state is spending federal funding.
House Speaker Todd Huston said then that he did not see a need for a special session, but he said “important and productive conversations on these topics are ongoing.” That comment came before Holcomb’s announcement about a mask mandate.
Hill is in the last year of his term. He intended to seek reelection but did not receive the Republican Party’s nomination earlier this month after he was suspended from the practice of law following accusations that he drunkenly groped a state lawmaker and three other women during March 2018 party marking the end of that year’s legislative session.
A special prosecutor declined to charge Hill.
Holcomb and other state leaders called for Hill to resign after the accusations and did not support Hill’s failed reelection effort.
Rokita in November will face off against Jonathan Weinzapfel, the Democratic former mayor of Evansville and a former state representative. Weinzapfel released a statement Thursday supporting Holcomb’s mask mandate.
“As Indiana’s next Attorney General, there will be times I disagree with state leaders on issues, but this isn’t one of them,” Weinzapfel said. “Under Indiana law, the Governor clearly has the authority during a public health emergency to institute a statewide mask requirement and I would gladly defend it in court.
“Curtis Hill’s position on this mask order should come as no surprise. This isn’t the first time he has played politics during the pandemic,” the Democratic candidate continued. “He has been actively trying to destroy the Affordable Care Act, thus jeopardizing the health care of millions of Hoosiers. A position, by the way, shared by Congressman Rokita.
“The future of our state is at stake and I hope my Republican opponent and elected leaders from both parties join me in standing by this order.”
Rokita had not responded to the mask mandate at IL deadline.
Indiana is not the only state where leaders disagree over the appropriate measures to protect the public from the pandemic.
In Kentucky, Republican Attorney General Daniel Cameron successfully moved to strike all of Democratic Gov. Andy Beshear’s COVID-19 orders. The order granting Cameron’s motion, however, has been stayed by the Kentucky Supreme Court, according to the Louisville Courier Journal.
Beshear’s orders have included a public mask mandate, as well as limits on business occupancy and an extension of remote learning for K-12 schools.