1. The multibillion dollar marijuana industry in the US disagrees with you.
The defining “shadow” power of the executive branch is discretion, usually in the context of how or IF a law is enforced. That’s why a cop doesn’t HAVE to jail you for an offense if they have a reason not to. In the case of state decriminalization of MJ, discretion is being used not to enforce federal drug laws in those states...for now. Because, make no mistake, they still could.
2. Do you actually think the current federal government would even consider stepping in to uphold a law requiring masks? From what I can see, the feds are one of the biggest sources of the fight against requiring them.
We’ve already had discussions on the quality of federal and state leadership in this country and others in this thread. Let’s leave that lie.
And as Umbran correctly points out, most public health orders are implemented and enforced at the state level. Barring some truly exotic fact situations- like, perhaps one state suing another over strictness or laxity of their handling the pandemic- the feds have no jurisdiction over state orders.
Everything I read in my skim through that doc was about employer/employee relationships. Stores/customers/etc are a different case. Check out these two examples:
Paratransit EligibilityHow is paratransit eligibility determined?If an individual is eligible for ADA paratransit in their place of residence, does that individual have the right to u
www.transit.dot.gov
Places like stores and service providers are actually forbidden from asking for proof of a medical condition that requires accommodations like service dogs or wheelchairs. Just claiming it is completely sufficient. AFAIK, this has never been challenged in the court for masks, but I suspect it will go the same way.
There’s critical differences.
First of all, things like wheelchairs and service dogs are explicitly covered under a variety of laws and case law as aids to help the differently abled. And since service dogs are the only universally recognized service animals in the USA, there HAS been pushback against those claiming non-canine service animals. Inquiries into those have NOT been disallowed, with victories for the businesses beginning to accumulate. Remember the airline’s disallowing the boarding a claimed emotional support peacock from one of its flights in 2018? They won. So did the airline that wouldn’t allow a passenger to fly with his emotional support pig in 2014.
Second, as pointed out before, masking orders fall under public health rules, not aids to the disabled. It’s a completely different set of laws. And far more onerous and invasive PH orders have been upheld by the SCOTUS.
This is the part that I find terrifying on a personal level. If I'm in a store and someone else refuses to wear a mask, there's little I can do personally to make them wear it. I could call the police and report it. But if the base charge needs to be trespassing or disturbing the peace, I'm relying on the store to ask the person to don a mask. If the store decides they don't want to get involved, there's nothing I can do. That's why I firmly believe we need much stricter mask laws; the current ones just don't cut it.
It doesn’t NEED to be a trespassing charge, that’s just the retailer’s trump card. As was done in 1918, if there is a masking order in place, you could simply report a violation to the authorities.
Now, whether they’re going to ENFORCE the order is another matter entirely. There’s at least one sheriff in Ohio who has publicly stated he won’t enforce such ordinances and actually ordered his deputies to go about their duties unmasked. Similarly, sheriffs in Denton, Houston, Montgomery, Gillespie, Upshur, Kerr, Gregg, Nacogdoches and Panola counties in Texas have likewise refused to enforce the Governor’s masking order, citing “unenforceability” and logistical issues. So far as I know, none of those 10 LEOs has gotten any kind of reprimand.
Plus, in certain circumstances, the person claiming the exemption goes a little too far. While I haven’t seen any reports lately, for a while, there were several people trying to support their flouting the regs with documents claiming to be from the ADA and other agencies. Some went as far as to include replicas of those agencies’ official seals on the documents. All of these are, of course, forgeries of federal documents. That’s a felony.
Others tried similar documents with entirely fake agencies and seals. That’s fraud.
In those cases, I advised anyone involved to get photos of the individuals ad get some contact info (if possible) and contacting the police.
The anti-vax movement is working very hard to prevent this exact thing, and they're having a depressing amount of success with
They’ve had some success convincing some of the general public that it’s a fight they can win, yes. But no case has gone to court, mostly for reasons already stated.
And even if such a case goes to court, the force of
stare decisis behind a 115 year old branch of case law is considerable. Not many judges are going to want to buck that, even if they don’t agree. They’re going to want something solid to hang their robes on. So far, there really hasn’t been anything noteworthy in terms of a novel legal argument.