On Wednesday, Georgia's Governor Brian Kemp issued an executive order that banned cities and counties from ordering people to wear masks in public places.
Kemp voided orders on Wednesday that at least 15 local governments across the state had adopted even though Kemp had earlier said cities and counties had no power to order masks during the coronavirus pandemic.
The Republican governor has instead been trying to encourage voluntary mask wearing, including telling fans that reduced infections from mask-wearing would make college football season possible.
Kemp's move is likely to infuriate local officials in communities that had acted, including Atlanta, Augusta, Savannah, Rome and the governor's hometown of Athens-Clarke County. Overall, mask orders by Wednesday were covering 1.4 million of Georgia's more than 10 million residents.
Savannah Mayor Van Johnson was the first local official to defy Kemp and order masks, and had said police would start writing $500 citations to businesses that didn't enforce the law.
Governor Kemp Does Not Give a Damn About Us
Mayor Bottoms says Gov. Kemp is trying to block her from talking to the press
Georgia in the Red Zone
Time reports Georgia is in the Red Zone.
On July 10, Bottoms said in a statement that she rolled back reopening measures “[b]ased upon the surge of COVID-19 cases and other data trends, adding that “Georgia reopened in a reckless manner and the people of our city and state are suffering the consequences.”
Georgia was one of the first states to reopen parts of its economy at the end of April and it has seen a dramatic increase in COVID-19 cases over the past few weeks. On Thursday, Georgia was included in a list of “red zone” states compiled by the White House Coronavirus Task Force, meaning Georgia has more than 100 new cases per 100,000 people last week, according to the Atlanta Journal Constitution. On Friday, Georgia reported 3,908 new cases of the virus and 28 confirmed deaths, according to the state’s department of health. As of Friday afternoon ET, Georgia had at least 135,192 confirmed cases in total, according to a tracker from Johns Hopkins University.
Why Raging in the South
Georgia New Covid Cases
Cathy Cox, the dean of Mercer University School of Law, says she believes Kemp could win because of the structure of local government in Georgia. Municipalities have broad emergency powers under Georgia law, Cox explains, but that same law says that cities cannot use their powers to do anything that is “inconsistent” with an order issued by the governor. “Cities don’t have a lot of wiggle room to do things beyond what the legislature says they can do,” she says.
Clark Cunningham, a professor of law at Georgia State University College of Law, explains to TIME, and state governments typically win. However, Cunningham explains that Kemp’s order is built upon his emergency powers, which give him authority to “take action to protect the health, safety, and welfare of Georgia’s residents and visitors to ensure COVID-19 remains controlled throughout this State.”
Kemp’s suit is unique, Cunningham says, because Bottoms could feasibly argue that the order preventing her from mandating face masks is contrary to Kemp’s declaration of a public health emergency. Therefore, in Cunningham’s opinion, to win, Kemp should have to argue that “preventing the mayor from requiring the wearing of masks ensures that COVID-19 remains controlled.” If the court agrees with this principle, Kemp may well lose the case, Cunningham says.
Kemp’s suit also asks the court to place a gag order on Bottoms that would prevent her from telling the press that “she has the authority to impose more or less restrictive measures that are ordered by Gov. Kemp related to the Public Health Emergency.” A judge might be hesitant to place such a gag order because it could violate the First Amendment’s guarantee of freedom of speech, Cunningham says.
Legal Debate vs Battle for Public Opinion
Courts may rule anything including invalidating the entire order, parts of the order, or sending it back to be better worded.
The battle over public opinion is a different matter.
Kemp Follows Trump's Playbook
- Georgia's Covid Improvement was a Big Lie by the Governor
- Trump Downplays Outbreak as Sniffles and Burning Embers
Kemp is following the Trump playbook hook, line and sinker.
That is a losing policy, no matter what the courts rule.