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.