>>>
>>> 8:42.
>>> 8:42. IN COLORADO MASKS ARE NOW
MANDATED AND LAST CALL FOR
DRINKS MOVED UP TO 10:00 P.M.
THESE RECENTLY MOVES DURING THE
PANDEMIC ARE SPARKING DEBATE.
MANY PEOPLE SAY THE GOVERNOR'S
MOVES ARE NOT CONSTITUTIONAL.
SO WE PUT THE QUESTION TO OUR
9NEWS LEGAL ANALYST AND MSU
PROFESSOR WHITNEY TRAILER.
WHITNEY, GOOD MORNING.
>> GOOD MORNING, GARY, AND GOOD
MORNING TO MY NIECE AYVANI WHO
IS 12 YEARS OLD TODAY.
SO HAPPY BIRTHDAY, AYVANI.
>> HAPPY BIRTHDAY, AYVANI.
THAT'S TERRIFIC.
THAT'S TERRIFIC. FIRST THINGS FIRST, JUST ARE
MASKS CONSTITUTIONAL?
MASKS CONSTITUTIONAL? >> IT'S A GREAT QUESTION AND
THE ANSWER IS, YES, MASK
MANDATES I THINK ARE
CONSTITUTIONAL, PARTICULARLY AT
THIS TIME UNDER THE PANDEMIC.
SO STATES HAVE POLICE POWER AND
THEY ARE ALLOWED TO ENACT LAWS
AND MANDATES THAT PROTECT THE
PUBLIC GOOD.
PUBLIC GOOD. AND AS LONG AS THE POLICY IS
GENERALLY NEUTRAL AND
APPLICABLE TO THE CONSTITUENCY
AS A WHOLE AND THE GOVERNMENT
CAN JUSTIFY THE MEDICAL
NECESSITY.
NECESSITY. SO HERE THERE HAVE BEEN
CHALLENGES ON VARIOUS SOCIAL
DISTANCING MEASURES SUCH AS
CLOSING BUSINESSES.
CLOSING BUSINESSES. AND THE COURTS HAVE SAID, YES,
THEY CAN DO THAT AND OVER THE
YEARS THE SUPREME COURT, I
THINK, HAS BEEN CONSISTENT IN
THIS REGARD SAYING THAT IT'S
NOT IN PROPER REGULATION OF
SPEECH TO HAVE THE MASK, BUT
IT'S REGULATION OF CONDUCT.
>> ALL RIGHT.
SO WE HAVE LEGAL PRECEDENCE.
DOES THIS GO BACK TO PREVIOUS
PANDEMICS OR IS THIS SOMETHING
THAT CAME UP IN MODERN TIMES?
>> WELL, I THINK A LITTLE BIT
OF BOTH.
OF BOTH.
OF BOTH. IN 1905, FOR EXAMPLE, THE
SUPREME COURT, THE U.S. SUPREME
COURT IN JACOBSON VERSUS
MASSACHUSETTS SAID THAT
VACCINES COULD BE MANDATED AND
IF ADULTS CHOSE NOT TO GET
VACCINES, THIS WAS AROUND THE
SMALLPOX, THEY COULD BE FINED.
ALSO, IN THE 1918 INFLUENZA,
THEY ABSOLUTELY MANDATED MASKS
AND THEY WERE FINING PEOPLE FOR
NOT WEARING THOSE, I BELIEVE UP
TO $5 A DAY, WHICH EQUATES TO
ABOUT $100 A DAY HERE.
AND JUST LIKE IN TRAFFIC COURT,
YOU COULD GO IN AND CHALLENGE
THAT -- THE CHARGE AND SEE IF
YOU COULD GET IT REDUCED.
NOW, THE JOURNALISTS, THEY
CALLED THAT INFLUENZA COURT.
>> THAT'S PRETTY INTERESTING.
SO GOVERNOR POLIS AS WE SAID,
ORDERED LAST CALL FOR ALCOHOL.
BARS AND RESTAURANTS, TO BE
MOVED BACK TO 10:00 P.M.
AND THIS IS BEING CHALLENGED BY
A GROUP OF RESTAURANT OWNERS.
SO DID THEY HAVE A GOOD
ARGUMENT, LEGALLY?
ARGUMENT, LEGALLY? >> THIS ONE IS A LITTLE
TRICKIER.
TRICKIER.
TRICKIER. THIS ONE IS CLOSER BECAUSE IN
THIS SITUATION, I THINK THEY
WILL ARGUE THE 14th AMENDMENT,
EQUAL PROTECTION CLAUSE, SAYING
THAT, HEY, YOU'RE TREATING OUR
INDUSTRY DIFFERENT THAN THESE
OTHER INDUSTRIES.
OTHER INDUSTRIES. IN ORDER TO DO SO, YOU HAVE TO
HAVE -- MEET A CERTAIN BURDEN
OF PROOF, GOVERNMENT.
YOU HAVE TO SHOW WHY THIS IS
NECESSARY.
NECESSARY. NOW THE GOVERNMENT OR THE STATE
IS GOING TO RESPOND AND SAY,
I'M ASSUMING THEY ARE GOING TO
HAVE DATA THAT SAYS, HEY,
BETWEEN 10:00 AND 2:00 PEOPLE
GETTING DRUNK AND THEY ARE
GETTING INTO SHENANIGANS AND
IT'S CAUSING THE SPREAD.
AND IF THEY CAN SHOW THAT KIND
OF DATA, THEN I THINK THEY WILL
HAVE A GOOD ARGUMENT.
AND AS I UNDERSTAND IT, THEY
CAN ACTUALLY POINT TO THOSE
KIND OF METRICS THAT SHOW THIS
INCREASE IN SPREAD AT THOSE
TIMES.
TIMES.
TIMES. >>
TIMES. >> WE WILL SEE WHAT HAPPENS
ABOUT THAT.
ABOUT THAT. SO THESE MANDATES IN COLORADO
AND ELSEWHERE, THEY ARE BEING
IMPOSED BY STATE AND LOCAL
GOVERNMENTS.
GOVERNMENTS. WHAT ABOUT IF THE FEDERAL
GOVERNMENT IMPOSED A MANDATE?
IS THAT CONSTITUTIONAL?
>> THAT'S A GREAT QUESTION.
AND HISTORICALLY OR IN THE
RECENT PAST, THE PRESIDENT HAS
NOT BEEN, YOU KNOW, PROMOTING
MASKS AS WE HAVE SEEN, BUT
RECENTLY HE STARTED WEARING
THEM.
THEM.
THEM. I
THEM. I DON'T KNOW THAT THAT
NECESSARILY MEANS HE'S READY TO
TAKE A STEP TO FEDERALLY
MANDATE IT.
MANDATE IT. I THINK THAT WOULD BE A TOUGHER
SITUATION, THOUGH, BECAUSE THE
FEDERAL GOVERNMENT, UNDER THE
CONSTITUTION, ONE OF THE
PURPOSES OF THE CONSTITUTION
WAS TO LIMIT THE FEDERAL
GOVERNMENT.
GOVERNMENT. SO IF IT'S NOT A SPECIFIC,
ENUMERATED POWER GIVEN TO THE
FEDERAL GOVERNMENT UNDER THE
TENTH AMENDMENT, THOSE RIGHTS
ARE RESERVED TO THE STATES.
SO THESE ARE USUALLY STATE AND
LOCAL ISSUES.
LOCAL ISSUES. I THINK THE FEDERAL GOVERNMENT
COULD CERTAINLY IMPOSE MASK
MANDATES ON FEDERAL LANDS AND
THERE'S AN ARGUMENT IF THEY
COULD ARGUE THAT IT IMPACTS
INTERSTATE COMMERCE AND THEN
THEY COULD DO SO UNDER THE
COMMERCE CLAUSE.
COMMERCE CLAUSE. BUT I THINK A FEDERAL MANDATE
WOULD BE TOUGH TO PASS
CONSTITUTIONAL MUSTER AND
THAT'S WHY REALLY THE GOVERNORS
HAVE BEEN AT THE FOREFRONT OF
THE MASK SITUATION.
>> ALL RIGHT.
WELL, WEAR YOUR MASK, WHITNEY.
>> YES, I WILL DO SO.
I'M HOME ALONE RIGHT NOW, SO --
>> OH, OKAY, YEAH.
ME