Tuesday, August 10, 2021

When Bad Laws Make Bad Constitutional Law: Arkansas Anti-Mask Mandate Edition

by Michael C. Dorf

Hard cases make bad law. So goes an old adage. A hard case tests commitments to legal rules and standards, leading judges to bend or distort those rules and standards, thereby rendering them less useful for the mine run of what should be easy cases.

Today I want to propose and explore a corollary: Some bad laws make bad constitutional law. I'll elaborate with respect to the recent ruling by Judge Fox issuing a preliminary injunction against the enforcement of an Arkansas law (Act 1002) that forbids state or local government actors--including school districts--from mandating face masks, shields, or coverings. When the Arkansas legislature enacted Act 1002 in April of this year, COVID-19 cases were declining and there was some hope that mask mandates for the current pandemic would not be needed again. The law was nonetheless rash, given the possibility of a new disease outbreak or, as we have experienced, the spread of a more contagious variant. The legislature's recent failure to repeal the mask mandate ban, despite the wishes of Governor Asa Hutchinson (who now regrets and wishes to remedy his initial decision to sign Act 1002), is murderous stupidity.

Nonetheless, not all stupid laws are unconstitutional. Justice Scalia used to sometimes say that he wished he had a stamp he could use to label some of the laws he saw challenged "stupid but constitutional." I disagreed with Justice Scalia about exactly which laws would earn that stamp, but I agreed and still agree with the basic idea: A law can be stupid, even criminally so, without being unconstitutional. I fear that might be true of Act 1002. Judge Fox's very brief preliminary injunction opinion does not persuade me otherwise.

Judge Fox's ruling construes the Arkansas constitution, not the federal one. I am not an expert in Arkansas constitutional law, so it's quite possible that what I'm about to say is mistaken in one or more ways. With that disclaimer, let's dig into the reasons Judge Fox gives for invalidating Act 1002. I'll begin where I'm most confident of my analysis.

Judge Fox says in paragraph 15 of his order that Act 1002 "facially violates the equal protection provisions of Article 2 of the Arkansas Constitution, in that it discriminates, without a rational basis, between minors in public schools and minors in private schools."

Yet there's an evident rational basis for the distinction that the law draws. As applied to schoolchildren, the purpose of Act 1002 is to give parents the right to decide whether they want their children masked. That's terrible from a public health perspective, of course, but it's pretty clearly what the law is about. From Texas to Florida to Arkansas, politicians who oppose mask mandates in schools don't generally say that kids shouldn't be allowed to wear masks. They say the decision should rest with parents. Applying the mask mandate ban to public but not private schools is consistent with that policy, because parents still have a choice. No one is required to send their kids to private school. Thus, parents can choose whether or not to send their children to a private school that requires masks. Application of Act 1002 to public but not private schools thus draws a rational distinction based on the policy of parental choice.

Does that mean that the distinction is perfectly sound? Of course not. How could it be, given that the whole law itself is stupid? But rational basis scrutiny is traditionally extremely deferential to government in the drawing of distinctions.

Hold on. Perhaps the Arkansas version of the rational basis test is less deferential than the federal version? Again, I'm not an expert in the relevant law. There might be some subtle distinctions. Still, my research into the question showed that the Arkansas courts generally construe Article 2, Section 3--"The equality of all persons before the law is recognized, and shall ever remain inviolate"--to have roughly the same content as the Fourteenth Amendment's Equal Protection Clause as construed by SCOTUS, at least with respect to the rational basis test.

For example, a 2015 ruling of the Supreme Court of Arkansas characterizes rational basis review under the state constitution as "a very deferential standard" that "requires only that classification rest on real and not feigned differences, that the distinctions have some relevance to the purpose for which the classification is made, and that their treatment be not so disparate as to be arbitrary." That is essentially the federal standard, and under it, there is clearly a rational basis for distinguishing public and private schools.

So much for equal protection. Still, Judge Fox finds other constitutional errors. Let's consider them.

Judge Fox says that Act 1002 violates a provision of the Arkansas Constitution that grants to the state Supreme Court "general superintending control over all courts of the state." It's not clear to me that this is a correct reading of the provision, which seems to be about assigning judges to courts, not about control over the physical infrastructure of the courts and the rules governing who can enter and how they should be dressed. However, let us assume that it is a fair reading of general state separation-of-powers principles to say that if the state courts decide they want a mask mandate, the legislature cannot say otherwise. Even so, however, it's hard to see how that benefits the school districts. They're not generally run by state courts. And presumably Judge Fox would not say that all state laws setting forth rules and standards for schools violate state separation of powers principles because they take power away from state courts.

There is perhaps a suggestion in Judge Fox's opinion that by stripping state courts of superintending power over access to certain buildings, Act 1002 is facially unconstitutional and that its application to schools is nonseverable. This idea--which was endorsed by the dissenters in the first Obamacare case and by Justices Alito and Gorsuch in the latest one--is radical. It's even more radical here than in those cases, where there was at least a plausible argument that the individual mandate to purchase health insurance was the linchpin of the whole Affordable Care Act, so that its invalidation should take down the whole law with it. Here there's no reason to think that the ostensible invalidity of the mask mandate ban as applied to courthouses is somehow interconnected to its application to schools. At the very least, if Judge Fox were relying on nonseverability, he would have said so.

Thus, I find the courthouse argument mysterious if meant to have any bearing on schools. I conclude that Judge Fox did not intend to make a nonseverability argument but was simply relying on the judicial supervisory power argument to grant relief to the judges who were co-plaintiffs in the consolidated case before him. The ruling thus limited is arguably sound as applied to courthouses. But the big prize is schools. Neither the equal protection nor judicial superintending power analysis provides much traction with respect to schools.

Judge Fox also relies on a provision of the Arkansas Constitution that gives county judges custody of county property. Here he may really be saying that by banning mask mandates in schools that are county property, the legislature has usurped the judiciary's power. But if so, that strikes me as far-fetched. Suppose the legislature forbade schools from mandating school uniforms or forbade them from beginning the school day earlier than 7:30 am. Would that be a violation of the assignment of county property custody to county judges? Such a determination seems very much at odds with another provision of the Arkansas Constitution vesting educational responsibility in the state legislature. 

That leaves one other claim that could benefit the school district and parent plaintiffs. Judge Fox says that Act 1002 is unconstitutional on separation of powers grounds insofar as it usurps the Governor's emergency powers. But so far as I can tell, the Arkansas Constitution doesn't vest any emergency powers in the Governor. Weirdly, Judge Fox finds that Act 1002 violates a statutory provision granting the Governor emergency powers. Yet if Act 1002 is inconsistent with a prior statutory delegation of emergency power to the Governor, then, under ordinary principles of statutory interpretation, Act 1002 should be understood as a partial repeal of the prior delegation. A statutory delegation of power followed by an implicit or explicit repeal of part or all of that delegation does not violate separation of powers.

Accordingly, I conclude that Judge Fox lacked a sound legal ground for invalidating Act 1002 as applied to schools. The law is stupid and evil, but given what I was able to figure out about Arkansas constitutional law in an hour or so of research, it is also valid.

Perhaps the decision can nonetheless be justified on moral grounds. In Law's Empire, Ronald Dworkin imagined the obligations of a judge under the Nazi regime. To avoid giving effect to evil law, such a judge would be warranted in lying about the law, Dworkin said. In Justice Accused, Robert Cover said similar things about antislavery judges who tried to undercut or evade the Fugitive Slave Act. The current Arkansas legislature isn't exactly the Nazis or enslavers, but perhaps the bar for judicial civil disobedience isn't quite that high/low.

I'll close with three further observations.

(1) As I said, perhaps my general ignorance of Arkansas law has led me to overlook some reason why Judge Fox is right after all. I surely hope so.

(2) I also hope that the defendants choose not to appeal, although here my ignorance of Arkansas law truly leaves me in the dark about who has what power to acquiesce in Judge Fox's ruling, despite its legal shakiness. In general, state lawyers defend state laws when challenged. My usual druthers say that they should do so if there's a plausible legal argument for that defense. But there are special circumstances in which a government lawyer might permissibly choose not to appeal an adverse ruling despite a high likelihood of success. I won't now attempt to articulate exactly what those special circumstances are, except to say that avoiding the near certainty of adding to the number of preventable deaths due to a communicable disease should be on the list.

(3) In the event that one or more state defendants with the capacity to appeal chooses to do so, I don't much worry that I've given them ammunition with which to defend Act 1002. The weaknesses I've described in Judge Fox's opinion would be pretty obvious to any minimally competent attorney.


Joe said...

The link is to a bare four page order & I question resting an analysis of this type on it. It very well might be wrong. But, I would want to see more analysis.

kotodama said...

The other arguments I agree are très flimsy, but it doesn't seem completely farfetched to torpedo the law based on EP, even though it's some form of rational basis review. (I do note of course that the EP grounds was listed at the end of the order, so presumably the judge didn't view it as the strongest, but I disagree.) In particular, AR has a state constitutional provision that appears to provide some public school and educational rights. So accounting for that would boost the RB review to "plus" or "with teeth" level as they say.

Even just on plain vanilla RB review, I think the OP gives the potential arguments short shrift. I of course acknowledge that "economy class" RB is highly deferential too. But even if you accept the framing proposed in the 6th paragraph of the OP, you can still poke many holes in it. In the very first instance, parents have input with their local school board about whether or not to even impose a mask requirement. School boards aren't dictatorships after all. But they are democracies, sort of, so if more parents want to require masks, that reflects their choices as well. You can't just look at it in a vacuum from the perspective of the objecting parents, as if they're the only ones whose choices matter. (#AllChoicesMatter). Don't conservatives support local control too?

Moreover, objecting parents aren't physically prevented from having their kids go unmasked; they can exercise that choice. But they just have to take the negative consequences of doing that, or they can switch to a private school without a requirement. Maybe the response is that realistically some parents can't afford private school enrollment. But that actually just adds to the irrationality. You again have to consider the view of public school parents who want their kids at schools with a mask requirement, not just to have their kids individually masked—because, obviously, everyone has to mask or there's no real protection. Assume too (not unreasonably I think) that some private schools do have a requirement. If some of those parents can't afford private school tuition (again, I think a fair assumption), the law then discriminates against their exercise of choice solely based on their wealth or lack thereof. How is that not irrational?

Anyway, I recognize the above, like the OP, is all or mostly conjectural/hypothetical, because as Joe pointed out, the order is rather terse. (In the OP's defense though, it did make an appropriate caveat—"very brief preliminary injunction opinion".) But we don't actually have to speculate about the reasoning. Surprisingly perhaps, AR is caught up with gov't adoption of modern technology in its court system and provides online dockets. The docket for this case conveniently allows access to the brief ISO the PI motion—shortened URL below. As one can see, the brief starts with a discussion of irreparable harm—not a bad strategy perhaps. But once it progresses to likelihood of success, first up is the state-specific educational right, just as I suggested. And then it gets into some meat-and-potatoes EP arguments. While they're different from what I posited above, they're not insubstantial either. The order might have been terse, but I think it's safe to assume that it impliedly adopted whatever arguments the plaintiffs were making.

kotodama said...

I forgot to include the link!


Also, as an aside, I think this statement in the 2nd paragraph gives the AR Leg/Gov too much credit: "When the Arkansas legislature enacted Act 1002 in April of this year, COVID-19 cases were declining and there was some hope that mask mandates for the current pandemic would not be needed again." This doesn't make a lot of sense. If the time came when mandates weren't needed anymore, they would just be rescinded or wouldn't be imposed in the first place. Nobody in their right mind is going to maintain or impose a truly unnecessary mandate just for kicks. So the posited rationale for the "mandate ban" (bandate, bandaid? it's such a clunky expression) makes no sense on its own terms. The only thing unnecessary is the mandate ban itself, not the actual mandates.

kotodama said...

Ugh, the link (not Bitly, the underlying AR courts one) expired. Here's a replacement on Drive (you can only download, not preview, sorry!.


That also gives me an opportunity to share one more thought on the overall theme of the OP. VC had some coverage of the recent district court enjoining on a FL law banning private vaccine verification. That was another example of bad laws making bad constitutional law, but there it was federal 1A bad law. As I discussed with one of the commenters (Stephen Lathrop), while we appreciated the substantive outcome, doctrinally it's not a good look for the 1A. Luckily in that case there was a superior basis available—DCC.

Michael A Livingston said...

There’s something strange about saying that a masking statute is facially neutral. Beyond that, nice job.

kotodama said...

Was that directed at the OP? I didn't see anything about facially neutral.


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