The degree of confidence with which critics condemn executive emergency pandemic orders as unconstitutional or unsupported by scientific evidence is, in my view, usually inversely related to their knowledge of science or constitutional law.

I hereby offer Androscoggin County Commissioner Isaiah Lary as exhibit 1 for that proposition.

On Feb. 3, after an acrimonious public hearing — at which Lary and the majority of attendees did not wear masks — the County Commission voted 4-3 to table a resolution he had proposed. The resolution asserted that “all citizens, businesses and visitors of Androscoggin County are free to wear or not wear masks … and to peaceably assemble for religious or secular reasons, according to the dictates of their own conscience.”

Lary questioned Gov. Janet Mills’ authority to issue emergency pandemic mandates, citing the non-delegation doctrine, which bars the Legislature from assigning its lawmaking powers to the executive branch.  He also cited the supposed lack of science behind wearing cloth masks, complaining that “it’s very hard to find opposing science through censorship by the big tech media and the mainstream media.”

On Wednesday Lary proposed an even stronger resolution to preclude county officials from enforcing pandemic orders, including mandatory mask wearing by any resident, visitor or business, and to require the county administrator to initiate a court challenge to the constitutionality of such orders.

Before rounding up the usual suspects — namely the mainstream media — Lary should have considered whether his difficulty in finding “opposing science” might be due to the absence of same, notwithstanding the herculean efforts invested into coronavirus research over the past year.

I’m not a scientist by trade. However, I have studied the history of science, earning a master’s degree in the subject in 1971. That doesn’t qualify me as a “lab rat,” but it has given me healthy respect for the rigor of the scientific method.

Progress in science is the result of painstaking accumulation and analysis of observations and data, leading to theories which are subjected to the acid test of repeated controlled experiments.  It can take years to arrive at an explanation for the smallest of nature’s mysteries, and, even then, researchers must keep an open mind for any inconsistent experimental results that may suggest a different conclusion.  Most importantly, science, unlike ideology, is agnostic.  It’s not governed by political, philosophical or religious beliefs that dictate the results.  It simply seeks the truth, even if that truth turns out to be contrary to what researchers originally expected or hoped to find.

If Lary wants to get personally into the scientific weeds, thereby avoiding the risk of being blinded by the media, he can read the numerous studies that have been conducted on the effectiveness of cloth masks in preventing the dispersion of coronavirus droplets and aerosols. Many are accessible online.

Or, as a short-cut, he can read the executive summary from a Brigham Young University review (last updated Aug. 21, 2020), which concluded, based on 115 of those studies: “There is now convincing evidence from multiple controlled experiments and field observations that wearing masks reduces the transmission of COVID-19 for health care workers and the public.”

Then there’s the issue of constitutional law, where, as an attorney, I’m on more familiar ground.

The Constitution is not a license to do whatever an individual pleases in the name of liberty.  It’s a blueprint for ordered liberty — for dispersing authority among different government agencies and bodies in order to avoid any overconcentration of power and for placing reasonable limits on the government’s ability to restrict an individual’s freedom of speech and action.  The boundaries of those limits are set forth in the language of the Constitution, but the language can be difficult to interpret and needs to be carefully parsed.

The problem is that both the U.S. and Maine constitutions are written in broad and elastic terminology, and there’s not always an obvious answer to questions of textual interpretation. The framers, after all, were putting pen to parchment over two centuries ago, when life was very different. They couldn’t possibly anticipate all the novel circumstances to which the language of the U.S. Constitution (1787), the Bill of Rights (1791) or the Maine Constitution (1820) might apply or the myriad ways in which various constitutional provisions might conflict with one another under such circumstances.

The job of constitutional interpretation has fallen to the courts under the doctrine of judicial review — not to county commissioners.

I will concede this much to Lary. The Maine Constitution contains no express provision allowing the Legislature to “delegate” or hand off its lawmaking powers to the Governor in the event of an epidemic.

If the legislative statutes that authorize such emergency powers are challenged in the courts, therefore, there’s at least a chance they might be found unconstitutional.  Last August, Maine U.S. District Court Judge Lance Walker held the Governor’s executive orders restricting non-essential business operations to be constitutional, but his decision did not address the delegation issue.

Unless and until the courts declare the governor’s emergency orders unconstitutional, however, the Androscoggin County Commission can’t unilaterally override them.

And if the wearing of masks at commission meetings offends Lary’s constitutional sensibilities, he can bring a court challenge on his own nickel, not the county’s. Indeed, the risk of COVID spreading at the Androscoggin jail should compel the county to oppose any such suit.

Lary has a choice. He can suck it up and mask up, or he can resign (or allow a pending recall petition to boot him out of office)! What he can’t do is to pretend that his personal take on science and the law gives him a free pass to act as he wishes.

Elliott Epstein is a trial lawyer with Andrucki & King in Lewiston. His Rearview Mirror column, which has appeared in the Sun Journal for 10 years, analyzes current events in an historical context. He is also the author of “Lucifer’s Child,” a book about the notorious 1984 child murder of Angela Palmer. He may be contacted at [email protected]

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