This brief Featured Article is provoked by local bureaucratic nonsense in the form of “Lake County Health Department Covid-19 Public Health Order 20-01.” This “Order” from the medical doctor “health officer” of the Lake County Health Department cites the purported statutory authority of IC 16-20-1 and IC 16-41-9. To its credit, the “Order” uses the word “should” where one would expect to see “shall” or “must” in a genuine order. The Order purports to require masks and hand sanitizers for all or nearly all inside Lake County businesses and claims the mentioned legal authority for such a mandate.
It was the 27th of March 2020 when I penned and posted a Featured Article on the Governor’s Emergency Powers. One point of several in the Article was that the Governor lacked most or all of the emergency powers that he claimed to have in support of his state-wide “shutdown” mandate. In looking at the Indiana Constitution I found the General Assembly to be endowed with “all powers necessary” for the Legislative Department of a “free and independent State.”¹ Such powers are certainly more broad than Constitutional powers of the Governor.
Some power of the General Assembly was delegated to the Indiana State Department of Health. The broadest expression of that authority is at IC 16-19-3-9 providing that the ISDH “may establish quarantine and may do what is reasonable and necessary for the prevention and suppression of disease.” These Article 19 powers belong to the State agency and not to local health authorities.
Local health authorities have their own “powers and duties” as set out at IC 16-20-1 and share some powers with the ISDH under IC 16-41-9. Within Article 20 Chapter 1 there is section 24 bestowing the power to close schools and churches and to forbid public gatherings. What Article 20 lacks is any grant of power requiring the provision of hand sanitizer at the entrance of every business and the wearing of face masks by all or nearly all within.
What about IC 16-41-9? The chapter applies to “a public health authority” and grants powers respecting communicable disease, isolation, and quarantine. See IC 16-41-9-1.5 and 1.6. Quarantine and isolation powers are directed at people who are infected or likely infected with a communicable disease. The law teems with references to individualized cause, notice, courts, and hearings. Section 1.5 grants no powers over the whole county population. Section 1.6 allows a health authority to “instruct the public” respecting masks, gloves, and disinfectants but does not empower general mandate of their use.
If you already know that you should wear a mask in public places, some bureaucrat’s “Order” that you do so is unnecessary. What troubles me most is how a “health officer” who needs credibility to be paid heed in matters of public health begins the monologue with a lie about the law. The one useful thing about Order 20-01 is that it gives merchants and others the apparent authority to insist that customers don a face mask.
Is there a state agency with the actual authority to order face masks and sanitizer for all or nearly all inside of all or nearly all businesses? Yes. Absent some deficit of constitutionality in IC 16-19-3-9, that authority is held by the Indiana State Department of Health which has chosen so far to refrain from exercise of that power.
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¹ See Article 4 Section 16 of the Indiana Constitution.
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