Georgia Gov. Brian Kemp has filed a lawsuit against Atlanta Mayor Keisha Lance Bottoms and members of Atlanta's City Council. The suit aims to prevent the city from enforcing mask requirements or rolling back the state's reopening phases.
The lawsuit comes just a day after the Republican governor issued an executive order suspending local governments' face covering requirements, a policy some 15 localities had adopted. The governor's own COVID-19 executive orders have recommended, but do not require, masks to be worn.
"This lawsuit is on behalf of the Atlanta business owners and their hardworking employees who are struggling to survive during these difficult times," tweeted Kemp. "These men and women are doing their very best to put food on the table for their families while local elected officials shutter businesses and undermine economic growth."
"3,104 Georgians have died and I and my family are amongst the [106,000] who have tested positive for COVID-19," Bottoms shot back. (The Democratic mayor announced last week that she had tested positive for the coronavirus.) "A better use of tax payer money would be to expand testing and contact tracing."
In addition to targeting the mask mandate, Kemp's lawsuit accuses Bottoms of telling the Atlanta Police Department not to enforce the state's ban on gatherings of more than 50 people.
The governor's attempts to curtail a locality's authority sparked a wave of national criticism from liberals—as well as from Congress' only Libertarian congressman, Rep. Justin Amash of Michigan.
Better headline: Governor sues for the right to potentially kill his constituents https://t.co/1MLnwHXNuJ
— Jemele Hill (@jemelehill) July 16, 2020
This is madness. This Governor of Ga. is using the state's resources to sue the mayor of city with a population disproportionately vulnerable to a deadly virus, to stop her from requiring a minimal public safety measure recommended by the CDC. Stand strong Mayor @KeishaBottoms. https://t.co/YduEp0I4qa
— Sherrilyn Ifill (@Sifill_LDF) July 16, 2020
What happened to support for local decision making? State governments should neither mandate mask wearing nor prohibit local units from mandating mask wearing. https://t.co/SvFhcBK4qB
— Justin Amash (@justinamash) July 16, 2020
Kemp's emergency COVID-19 orders include a prohibition on local governments issuing rules that are inconsistent with the ones coming from state authorities. His latest July 15 executive order also explicitly suspends any face covering mandates "to the extent they are more restrictive" than the governor's order.
Bottoms' most recent mask mandate—Atlanta law sunsets emergency orders every 72 hours, requiring them to be reissued—acknowledges this suspension. But the order argues that only a prohibition on wearing masks should be considered "more restrictive." The city's requirement to wear a mask, Bottoms' order asserts, isn't in fact a restriction on mask-wearing and therefore doesn't conflict with the governor's order.
This logic is a little wacky. A requirement to wear a mask in public entails a prohibition on not wearing a mask. That prohibition is clearly more restrictive than Kemp's voluntary guidance. As a matter of law, Kemp has the better argument.
That said, Kemp is clearly playing politics as well. The fact that he is suing to stop Atlanta's mandate, but not those of the other 14 Georgia cities with similar requirements, suggests this lawsuit is more about a political rivalry between the state's Republican governor and the Democratic mayor of its largest city than anything else.
At the same time, Bottoms appears happy to exacerbate this conflict by renewing her city's mask mandate in the face of an explicit state prohibition of these policies, and by using some really tortured reasoning to justify her action.
Other mayors are muddying things further by trying to make the issue about the wisdom of wearing a mask, not whether local governments have the power to require them. See, for instance, this tweet from Savannah Mayor Van Johnson:
It is officially official. Governor Kemp does not give a damn about us. Every man and woman for himself/herself. Ignore the science and survive the best you can.
In #Savannah, we will continue to keep the faith and follow the science. Masks will continue to be available!
— Mayor Van Johnson (@MayorJohnsonSAV) July 16, 2020
Of course, masks would still be available. The question is whether people will be forced to wear them.
What is a libertarian to make of all this?
There is a conceivable libertarian argument for masking requirements, on the grounds that they do more to prevent the wearer from infecting other people than from being infected themselves. Under this view, an unmasked person could be considered a walking nuisance whose behavior is the legitimate subject of regulation. But whether or not you accept this argument, these mask mandates apply to people regardless of whether they are infected and, thus, regardless of whether they pose a risk to others.
Other libertarians, such as Amash, might think that state governments should leave it to localities to come up with their own response to COVID-19. The severity of the pandemic can vary wildly within states, meaning a policy that's necessary for one city is inappropriate in another. Kemp's efforts to combat the pandemic, while being much less restrictive than other governors', have been among the most centralized.
Still, there's nothing inherently unlibertarian about state governments preempting unjust or unwise local laws. Few libertarians object to state prohibitions on local income taxes or rent control ordinances, for instance.
People should also be mindful of the fact that mask mandates come with serious punishments attached. Savannah's mask requirement comes with a $500 fine (although Johnson did tell the Associated Press that violators would be offered a free face covering first). Atlanta's laws make it a misdemeanor to violate the mayor's emergency orders, meaning someone could potentially be hit with a $1,000 fine and up to six months in jail for not wearing a mask in public.
We, as a country, just witnessed two months of protests predicated on the idea that police are often unnecessarily punitive and violent when enforcing the law. That would include the Atlanta Police Department, whose officers have recently been involved in a number of high-profile, highly controversial uses of force. This very same police department that would be expected to enforce the city's masking requirement.
Meanwhile, private parties—including such major retailers as Walmart, Target, Starbucks, and CVS—are requiring customers to wear masks. This will help keep shoppers safe without the threat of fines and jail time.
Kemp's lawsuit is obviously politically motivated. But the governor seems to have both liberty and the law on his side.
Rent Free is a weekly newsletter from Christian Britschgi on urbanism and the fight for less regulation, more housing, more property rights, and more freedom in America's cities.