The Ballad of Green, Schmitt, and Page
Missouri finally discovers the rule of law.
There have been some fascinating developments in Missouri and St. Louis County over the last couple of months, as the rule of law slowly regains its footing after a twenty-month vacation. I wanted to recap these events for posterity, and to give inspiration to residents of other areas. Eventually reversion to the mean takes hold, the law takes back its proper place, and representative democracy does its job. But it requires that the people demand it.
Chapter I: The Cole County ruling
On November 22nd, Judge Daniel Green issued a ruling in Shannon Robinson, et al. v Missouri Dept. of Health and Senior Services. His ruling is a remarkable document standing up for the rule of law.
The key legal matter in question was whether local health departments have the independent authority to implement control measures and close schools and public areas. The effect of this setup is that local health officials have unchecked authority to implement whatever they like, with no sunsetting of this ability based on facts on the ground.
Green’s ruling destroys this process. It cleanly lays out that health officials have no authority above and beyond what is granted in the state constitution, and is duly vested in the legislature and executive. Moreover, because there is no mechanism by which to strip these unelected officials of their powers, there’s no way to hold them accountable for any overreach, and therefore these orders cannot be allowed by such officials and must be enacted by elected politicians.
Judge Green even quotes French political philosopher and Founding Father forerunner Baron de Montesquieu here:
“When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.” Baron de Montesquieu, The Spirit of the Laws (London: J. Nourse and P. Vaillant, 1758), Book XI, ch. 6, p. 16.
This is a remarkable — and remarkably rare — return to first principles of representative government. Checks and balances are a key feature of our governing system, and to invest dictatorial power in a single individual, appointed by one executive, flies in the face of this principle. Judge Green reminds us of this primary tenet of governance.
But lest you think this ruling is purely in the realm of political philosophy, he grounds in it precedent:
The United States Supreme Court held that a delegation authorizing an executive to take action “as he may deem necessary” is an unconstitutional delegation because it assumes positive motives with no set standards. Panama Refining Co. v. Ryan, 293 U.S. 388 (1934)… Regulations that delegate unfetter and unbridled rulemaking to an administrative official based on “necessity” are invalid.
So therefore, any COVID policies issued by something other than legislative action or executive order, within the applicable laws, were invalid, unenforceable, and revoked.
Here’s where things get fun.
Chapter II: AG Schmitt upholds the ruling
State Attorney General Eric Schmitt is currently gearing up for a Senate run to replace outgoing incumbent Roy Blunt, so he may have particular incentives and pressures. But his letter to the school districts in the state was magnificent.
In no uncertain terms, he told them that per the Cole County ruling, any rules that would require students who had been exposed but not testing positive to stay home from school for a set number of days were against the law, and to be immediately discarded. Moreover, he stated that any mask mandates issued by school boards were also illegal, because state law does not delegate this power to them. And any continuing of these policies would be met with legal action.
This was the revelation in my thinking about this subject. My school district has been under a mask mandate since the beginning of the school year, renewed on a monthly basis. Their rule was that mask mandates would only be rolled back once county case counts dipped to numbers meeting the CDC’s “low transmission” threshold, which was set at 9 cases per week per 100,000 residents, plus a testing positivity rate of less than 3%. Note that the county never got to that threshold even in the nadir of case counts over the summer, so it was debatable whether this was an achievable metric.
(The district did change the required metrics for masks based on vaccine availability in each age bracket, so middle and high schools were moved to a CDC moderate threshold when the Pfizer shot was approved for 12-17, and elementary schools once it was approved for 5-11.)
But looking at the school district’s declaration, it was hinged on ambiguity in the state law. It basically came down to, “Well, it doesn’t say we CAN’T do this, so our lawyers say we can.” Schmitt’s letter made clear that the law doesn’t work that way. Unless the statutes specify that the school board DOES have that authority, they can’t.
School boards throughout St. Louis County immediately went into action trying to find their way to abide by this ruling. Some decided to challenge. Most agreed to rescind the school mask mandates when the schools reopened after Christmas break. My school district waited until the beginning of 2nd semester in the middle of January, to allow parents the ability to take their kids out of school and go virtual if desired. But they also instituted a rule that if more than 1% of people in any building were positive at one time, that would signal sufficient community spread to return to masks.
At last week’s emergency meeting, they discussed the newly-circulating news that cloth masks are ineffective, and whether they should require surgical masks or N95s. They ultimately chose not to, so as to not be financially burdensome on the parents, but they still chose to keep the acknowledged as useless cloth masks on everyone.
Of course, the Omicron spike has thrown a wrench into all of that, with some districts choosing to bring the mask mandates back without conditions for their release. To my knowledge, these aren’t being challenged currently, either because: A) of the sheer case counts of Omicron making it politically unpopular; B) Schmitt’s office knows that Omicron’s wave will be over within the next few weeks, at which point he will reemphasize the law; or C) because Schmitt has more important matters, like…
Chapter III: St. Louis County Executive gets testy
Dr. Sam Page has been St. Louis County Executive for two years, since his predecessor, Steve Stenger, resigned after being indicted for bribery and mail fraud. Since last spring, he’s been instituting mask mandates for the county through the county health director, currently acting director Dr. Faisal Khan.
State AG Schmitt’s office sued the county in May around their mask mandate, stating that they didn’t go through the proper legislative procedure to enact it. Page fought this suit, and stated that while the legal process was moving forward, the mandate still stood.
In response to the Cole County judgment, Page’s office publicly stated that the ruling didn’t apply to St. Louis County, because they were not a party to that lawsuit and they were involved in a separate action (the aforementioned State of MO v. Page, Kahn, and St. Louis County DoPH). A new mask mandate was brought to a vote on December 7’s county council meeting, but was ruled out of order because not enough time for debate had been provided.
Two days later on December 9, Dr. Khan issued a letter ahead of a court hearing in State of MO v. Page, et al., admitting that the mask order was no longer in effect, as its 30-day window had expired and the County Council had not voted on a new one. The order was quietly removed from the County Health website.
(Quick aside: because of reasons dating back to 1876, St. Louis City is separate from St. Louis County. St. Louis City has been renewing the mandates every 30 days through the Board of Aldermen.)
So this led to a new vote this week, January 4, to impose a new mask mandate on the county. The vote passed 4-3, along party lines. State AG Schmitt sued the county the next day for passing an illegal mask mandate.
Naturally, this is being denigrated as a reckless and irresponsible lawsuit that’s going to harm county residents, but as per everything above, Schmitt is standing for the rule of law.
He argues this mask mandate is illegal on four counts:
By state law, a mask mandate or similar public health order cannot be renewed within 150 days from the expiration of an illegal mandate, which the September 27 mandate was per the ruling above.
The new mandate did not carve out schools, which they must do per the Cole County judgment.
The mask mandate is actually an ordinance, not a rule or regulation. Therefore, the county charter has different rules to cover it, such as a minimum number of council meetings at which it must be debated.
The mask mandate is arbitrary and capricious, by failing to account for different risk profiles among the residents of the county, the lessened severity of the Omicron variant, the relevant science around masks, the requirement for vaccinated and naturally immune residents to still wear masks, and the monetary and societal costs associated with the mandate.
There’s an additional point here that’s not addressed in Schmitt’s lawsuit. By state law, an order that’s passed by a simple majority must have a waiting period before its implementation, and requires a two-thirds majority for immediate implementation. The order was voted on the night of January 4 and went into effect the morning of January 5, even though it passed by a 4-3 margin. Whether by accident or design, by passing the mandate by a 4-3 vote, the order is on even shakier ground and legal challenge was assured.
It’s entirely possible that, by passing the mask mandate in this manner that invites immediate legal challenge, it will force clarification of the law as to exactly how this must be done in the future.
What’s happening in Missouri is going to provide legal precedent to challenge these sorts of actions going forward, and provide hope for decades to come. If we are living in a society governed by laws, we need to enforce those laws across the board, rather than allowing them to be ignored in the name of public safety, particularly when there are no stated end conditions to those orders. Separation of powers requires that it must be so.
If I were a person in favor of government-enforced mask mandates, I would want them to be fully legal and unchallengeable, as they are in St. Louis City. I would want to cross every t and dot every i, so if a State AG came knocking, I could tell him the precise location of the sand for him to pound. It would make a better case to my constituents as well, that I did everything possible within the law to keep them safe.
But by raising the temperature of the political fight, Page is motivating his base to rally around him and cast his opponents as “opposed to health”. And when the narrative changes to masks being ineffective (which we’re rapidly approaching), he can still say that he was doing what he could with the information he had at the time, and keep the gains of casting his political opponents as villains.
This story will likely develop rapidly as Omicron wanes over the next two months. More to come.
Thanks for the St. Louis view, Joshua.
I saw your byline on a recent post from @yuribezmenov
Hope to see more work from ya!